Strategic Cropping Land Bill 2011
Report No. 6 Environment, Agriculture, Resources and Energy Committee November 2011 Environment, Agriculture, Resources and Energy Committee
Chair Mrs Carryn Sullivan MP, Member for Pumicestone Deputy Chair Mr Andrew Cripps MP, Member for Hinchinbrook Members Mr Jack Dempsey MP, Member for Bundaberg Ms Di Farmer MP, Member for Bulimba Mr Peter Lawlor MP, Member for Southport Mr Andrew Powell MP, Member for Glass House
Staff Mr Rob Hansen, Research Director Ms Robyn Moore, Principal Research Officer Ms Sarah McCallan, Principal Research Officer Ms Rhia Campillo, Executive Assistant
Technical Scrutiny Ms Renée Easten, Research Director Secretariat Mr Ian Caulfield, Principal Research Officer Ms Dianne Christian, Executive Assistant
Contact details Environment, Agriculture, Resources and Energy Committee Parliament House George Street Brisbane Qld 4000 Telephone +61 7 3406 7908 Fax +61 7 3406 7070 Email [email protected] Web www.parliament.qld.gov.au/EAREC
Acknowledgements The committee thanks those who briefed the committee, made submissions, gave evidence and participated in its inquiry. In particular the committee acknowledges the assistance provided by the Department of Environment and Resource Management. Strategic Cropping Land Bill 2011 Contents
Contents
Abbreviations and Glossary v
Executive summary 1
Recommendations 2
1 Introduction 3 Role of the committee 3 Public submissions 3 Public briefing and hearing 3 Policy objectives of the Strategic Cropping Land Bill 2011 3
2 Examination of the Bill 5
3 Fundamental legislative principles 23
DERM’s advice 25 DERM’s advice 33
Appendices 35 Appendix A – List of Submissions 35 Appendix B – Summary of Submissions 37 Appendix C – Witnesses at public hearing – 10 November 2011 128 Appendix D – Briefing officers – Department of Environment and Resource Management 129
Statement of Reservation 131
iii iv Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Abbreviations and Glossary
Abbreviations and Glossary
AgForce AgForce Queensland Industrial Union of Employers ASSSI Australian Society of Soil Science Inc. DERM Department of Environment and Resource Management FLPs Fundamental legislative principles - The principles relating to legislation that underlie a parliamentary democracy based on the rule of law (Legislative Standards Act 1992, section 4(1)). The principles include requiring that legislation has sufficient regard to the rights and liberties of individuals and to the institution of Parliament. Gilgai microrelief Small depressions in the land caused by wet weather. QFF Queensland Farmers’ Federation QMDC Queensland Murray-Darling Committee Inc. QRC Queensland Resources Council RAS Regulatory Assessment Statement SCL Strategic Cropping Land
Environment, Agriculture, Resources and Energy Committee v vi Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Executive Summary
Executive summary This Report presents the findings of the Environment, Agriculture, Resources and Energy Committee's examination of the Strategic Cropping Land Bill referred by the Legislative Assembly to the committee on 25 October 2011.
The Bill seeks to implement a legislative framework that recognises the state’s strategic cropping land (SCL) as a finite resource and provides the crucial balance between often competing interests for primary producers, resource developers and urban development.
The policy objectives of the Bill includes providing a process for assessing and deciding whether developments are permitted to proceed on validated strategic cropping land. Accordingly, the Bill will apply to resource developments and urban and industrial development in rural areas, outside of those areas identified for urban purposes.
The Bill seeks to establish the Strategic Cropping Land Act 2011, and to amend the Environmental Protection Act 1994 and Sustainable Planning Regulation 2009. The aims and policy objectives that have generated the most concern relate to the criteria for identifying land as SCL and validation of SCL, approval of projects in exceptional circumstances, mitigation requirements for developments which impact SCL and the transitional arrangements for resource development projects.
Fifty-five written submissions were received by the committee in response to its call for submissions and evidence from 15 witnesses was heard by the committee at the subsequent public hearing.
The Department of Environment and Resource Management (DERM) assisted the committee during its inquiry by providing a public briefing, responding to issues raised in submissions and providing further clarification and advice.
After consideration of all submissions, advice and evidence given during the course of the committee’s examination, the committee focussed on the following key policy issues: Purposes and application of the proposed Act Definitions Identification of SCL Validation of SCL Assessment of development impacts on the land Approval of projects in exceptional circumstances Mitigation of impacts on SCL and Transitional project arrangements.
The committee raises concerns with a number of matters emanating from the key policy objectives it focussed on. Briefly, these matters include: the lack of clarity in the definition of SCL the 50 year timeframe for assessment of permanent damage to SCL and lack of clarity concerning baseline assessments insufficiency of time for affected parties to make submissions in relation to zonal or Protection Area amendments concerns relating to the focus on soils as the criteria for identification of SCL
Environment, Agriculture, Resources and Energy Committee 1 Executive Summary Strategic Cropping Land Bill 2011
the effectiveness of the cropping history test the lack of clarity of the criteria to be met in assessing applications for exceptional circumstances concerns with the premise that SCL can be restored to its original productive capacity after permanent alienation by developments, such as resource developments concerns surrounding the Springsure Creek Coal project, and the application of fundamental legislative principles in respect of various Clauses of the Bill.
The committee is satisfied with the advice provided by DERM on the remainder of the concerns raised by submitters.
Recommendations
Recommendation One The committee recommends that the Bill be passed subject to clarifications and assurances sought by the committee in respect ofkey Clauses andprovisions of the Billthat are discussed inthis report.
Recommendation Two The committee recommends that Chapter 4 Part 2 be redrafted to clarify meaning and remove ambiguity form the applicationof the exceptional circumstances test.
2 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Introduction
1 Introduction
Role of the committee Section 93 of the Parliament of Queensland Act 2001 provides that a portfolio committee is responsible for considering: the policy to be given effect by the Bill, and the application of fundamental legislative principles to the Bill.
On 25 October 2011, the Legislative Assembly referred the Strategic Cropping Land Bill 2011, introduced by Hon Rachel Nolan MP, Minister for Finance, Natural Resources and The Arts, to the committee for consideration and report by 21 November 2011. On 17 November, the reporting date was extended by the Committee of the Legislative Assembly to Friday 25 November 2011.
The committee’s consideration of the Bill included a public submissions process and a briefing by policy officers from the Department of Environment and Resource Management (DERM) and a public hearing. The committee also considered expert advice on the application of fundamental legislative principles to the Bill.1
Public submissions The committee advertised its inquiry in the Saturday edition of The Courier Mail on 29 October 2011. The committee also wrote to stakeholder groups inviting written submissions on the policies that the Bill would give effect to as well as the Bill’s conformance with fundamental legislative principles. The committee accepted 55 written submissions (listed at Appendix 1). Appendix 2 provides a summary of the points raised in submissions on the chapters, clauses and schedules of the Bill.
Public briefing and hearing On 10 November 2011, officers from the Department of Environment and Resource Management (DERM) briefed the committee on the Bill. The committee opened this briefing, held in the Legislative Assembly Chamber in Parliament House, to the general public. The briefing was followed by a public hearing during which the committee questioned submitters about their views on the Bill.
Transcripts of the briefing and hearing are available from the committee’s web pages. The briefing officers and hearing witnesses are listed at Appendix 3.
Policy objectives of the Strategic Cropping Land Bill 2011 According to advice provided by the Department of Environment and Resource Management (DERM), the main purpose of the Strategic Cropping Land Bill 2011 is to implement a legislative framework that recognises the state’s strategic cropping land (SCL) as a finite resource that must be protected against the impacts of development and preserved for future generations.2
1 Section 4 of the Legislative Standards Act 1992 (Qld) provides that the fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law. The principles include requiring that legislation has sufficient regard to rights and liberties of individuals. 2 Department of Environment and Resource Management, Written briefing on the Strategic Cropping Land Bill 2011, 3 November 2011, p.2.
Environment, Agriculture, Resources and Energy Committee 3 Introduction Strategic Cropping Land Bill 2011
DERM also advised the Bill would provide for the protection of SCL by: The identification of SCL — [trigger] maps are to be used by land holders and developers to identify the zones and protection and management areas and land where SCL is expected to exist Validating whether land is SCL or not — where a proponent wants to confirm the land as either being SCL or not being SCL, the Bill requires the land to be analysed through an on- ground assessment against eight scientific soil criteria, a minimize size test and, where the project is in a Management Area, to demonstrate whether the land has a defined history of cropping Assessment of the development impacts on the land — the development must reasonably avoid and minimise the impacts to the SCL to the greatest extent practicable. The development may be conditioned for any temporary impacts, to restore the land to its pre- development condition. Conditions may also be imposed to manage, restrict or prohibit any impacts from the development. The SCL assessment process ties in with the existing assessment processes under the Sustainable Planning Act 2009, Environmental Protection Act 1994) and the various resource Acts Projects to be approved in exceptional circumstances — where a project is likely to have permanent impacts on SCL in a Protection Area, the project cannot proceed unless it demonstrates exceptional circumstances Mitigation — development that will have a permanent impact on SCL is required to address the consequent loss of productive cropping value of the land by providing mitigation. The mitigation arrangement is designed to ensure no loss of agricultural productive value in the local area over the long term Compliance and enforcement — powers are provided for authorised persons in relation to access, compliance notices and seizure. In particular, the powers enable access to land, where consent of the occupier cannot be obtained, to allow for necessary functions including investigation of offences; assistance with application assessment; and the issuing of notices to prevent offences being continued and to restore impacts from offences Transitional arrangements —transitional arrangements are provided for resource projects that have met certain milestones in the assessment and approval process Science and Technical Implementation Committee — the Minister may appoint a committee to provide independent scientific and technical advice about the administration of the Act, in particular relating to soil and land resources matters, and Review of the Act — the Minister will be required to review the Act’s operation two years after commencement.
4 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
2 Examination of the Bill
The table at Appendix 2 provides a summary of comments on the chapters and Clauses of the Bill raised by submitters, together with responses to these comments provided to the committee by DERM. The following section discusses the key policy objectives and particular Clauses that attracted the greatest volume of comment from submitters, as well as other Clauses where the committee believes the Legislative Assembly would benefit from further clarification by the Minister of advice provided by DERM. For the remaining Clauses, the committee is satisfied with the advice provided by DERM on the points raised by submitters.
Preliminary Chapter 1 of the Bill defines the purposes, how the purposes will be achieved and application of the proposed Strategic Cropping Land Act (SCL Act).
Clause 4 – How the purposes are achieved. A number of submissions commented on the change to the description of SCL (..land that is likely to be highly suitable for cropping) compared to the wording (“the best cropping land”) used in development drafts that DERM used during consultation with stakeholders. The Queensland Resources Council (QRC) also noted in its submission that this “loosening of the definition” may reopen the case for potential new future cropping land areas in the future. QRC also questioned whether the trigger maps and zones, based on the new definition, need to be redrawn to reflect the new definition.
The QRC also recommended that the wording revert back to “the best cropping land” or preferably the original definition ‘best of the best cropping land’.
Xstrata Coal noted in its submission that throughout the policy development, SCL has been described variously and inconsistently by the Government, that the draft State Planning Policy for SCL contained no definition, and that the definition in the Bill is vague and circular. Xstrata recommended a clear and unambiguous definition of SCL, and suggested, for example, “SCL is the best cropping land” is a definition that has been widely used by stakeholders.
Similarly, Origin Energy noted that the wording of the Clause is a significant shift from the Government’s stated intent to protect “the best of the best cropping land” when it released its initial discussion paper on the issue in February 2010. Origin noted that the intent to protect Queensland’s best cropping land was also mentioned in DERM’s proposed criteria for identifying strategic cropping land published in April 20113, and Guidelines for applying the proposed strategic cropping land criteria published in September 20114.
3 Department of Environment and Resource Management, Protecting Queensland’s strategic cropping land – Proposed criteria for identifying strategic cropping land – to be used in drafting the new strategic cropping land legislation (DERM: Brisbane), April 2011. 4 Department of Environment and Resource Management, Protecting Queensland’s strategic cropping land Guidelines for applying the proposed strategic cropping land criteria (DERM: Brisbane), September 2011.
Environment, Agriculture, Resources and Energy Committee 5 Examination of the Bill Strategic Cropping Land Bill 2011
Origin further noted that Section 14A of the Acts Interpretation Act 1954 requires where there is more than one possible interpretation of a provision, the interpretation that best achieves the purpose of the Act to be applied. Given this, Origin requested that sections 3(a) and 4(1)(a) and (b) be amended by deleting the words “land that is highly suitable for cropping”, and inserting “land that is the best of Queensland’s cropping land.”
The Australian Society of Soil Science Inc. (ASSSI) suggested that the definition for land that is highly suitable for cropping should include soil, climate and other factors.
DERM advice In its advice to the committee, DERM noted that Clauses 3 and 4 (1) (a) and (b) are consistent with the August 2010 SCL Policy Framework5 released by the Government which referred to strategic cropping land as “a scarce natural resource identified by soil, climatic and landscape features that make it highly suitable for crop production”. In regard to the points raised by ASSSI, DERM commented that climate was considered in setting the boundaries of the five criteria zones to reflect the different cropping systems and climatic variations across the State, and that soil and landscape features were considered when developing the criteria, provided for in Schedule 1 of the Bill.
Committee comment: The committee remains concerned that the Bill does not provide a clear and unambiguous definition of strategic cropping land, a term that is central to the operation of the Act. The committee seeks assurances from the Minister that the wording of Clause 4 will provide a clear and adequate indication as to what strategic cropping land is.
Clause 14 - When development has a permanent impact or temporary impact The identification of permanent and temporary impacts on SCL or potential SCL is the heart of this Bill. Twenty-seven submissions raised concerns about Clause 14, particularly about the 50 year timeframe used to define whether development on SCL or potential SCL has a permanent impact. Points noted include: Concerns that the definition would not capture the effects of subsidence and other impacts of longwall mining, and the lack of evidence that SCL can be restored or rehabilitated after underground mining The definition fails to account for impacts on aquifers The lack of justification for the 50 year timeframe – o the average age of farmers is 59 years however the average length of land ownership is 15 years and a generation is considered 25 years o Most state government planning cycles are 5 years – some for example Water Plans are 10-15 years at the most o Delbessie Lease renewals are for a term of 30 years The definition has vastly different meaning from the ordinary meaning of words in everyday speech (50 years would be considered by most people to be long term but not permanent) creating confusion
5 Department of Environment and Resource Management, Protecting Queensland’s strategic cropping land: A policy framework (DERM: Brisbane), August 2010.
6 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
Why evaluate the permanence of impacts on SCL against a time period longer than 30 years? The definition of permanent impact includes a range of activities deemed to be permanent impacts regardless of any actual impact or capacity to restore SCL.
At the public hearing the committee heard further from submitters about the 50 year timeframe. AgForce and QFF were critical of the 50 year timeframe suggesting it is far too long. As noted by AgForce: ….but there is also a very large difference between something that takes 49 years to impact but only one year to remediate versus one year to impact and 49 years to remediate. So time frames of permanent alienation we do not believe at this point in time have been that succinctly or well investigated within this process. (Wagner, Hearing Transcript, p.1) And: In relation to the time frame scenario … the reality that we still have, and will always have as far as agricultural production is concerned, is that the impact we are seeing here is from a hit and run industry. It is from an industry that is only operating for what is a short-term time frame to a medium-term time frame depending on what extractive process they are utilising. The agricultural production system across the best of our best cropping lands is there in perpetuity. It has been there for generations now. It will be there for generations to come. To measure it in a time frame of 50 years, when we are seeing industries like the coal seam gas extractive processes only lasting 10 or 15 years per well and an industry in its entirety only lasting 35 to 40 years, how can we accurately at this point in time look 50 years into the future and understand what those impacts are going to be and understand what permanent alienation actually means? (Wagner, Hearing Transcript, p.9) AgForce explained their concerns about a 50 year timeframe in simple production terms: To put in a relevant term for a production system or a farm business, which is what we are talking about—providing the food and fibre that we are reliant upon in perpetuity as an economy—there is no way we can jeopardise it to have a 2½ generational time frame to look at what that impact may or may not be. (Wagner, Hearing Transcript, p.10)
QFF, Canegrowers and Cotton Australia expressed similar concerns. Cotton Australia linked their concerns about the 50 year timeframe with other concerns about the adequacy of the Bill to protect against permanent damage caused by the gas industry: Again, the 50-year time frame makes it very difficult to judge whether there is any way possible that the coal seam gas industry cannot damage the land permanently. That will not be known until a long way down the track so that 50 years is too long. (Transcript, p.3)
The Queensland Murray Darling Committee (QMDC) commented that there is no justification for the 50 years: That time frame is beyond any current planning process that the state government has across any form of agricultural or resource management, whether it be state government planning processes or local government planning processes. We would obviously see that that needs to be brought back to a more reasonable planning time frame that suits not just agricultural but local government time frames as well. (Penton, Hearing Transcript, p.11)
Cotton Australia noted: At 50 years nobody will hold any personal responsibility at all in terms of anyone having the corporate knowledge of what went on or say, ‘Yes, we made a mistake,’ or ‘We didn’t make a mistake.’ It is outside all normal planning. I would suggest something around 20 years. That gives enough time for a reasonable amount of business planning certainty. It is also within a person’s natural lifetime in terms of taking action and making management decisions. (Murray, Hearing Transcript, p.9)
The QMDC noted in their submission that in the 2006 Census for Queensland—certainly in south- west Queensland—the average property ownership period is down to 15 years. In their evidence at the hearing, QMDC told the committee: There is a large number of properties changing hands on a regular basis compared to farms historically being in the one family for generations and generations. That social fabric has changed substantially. So the 50-year time frame is
Environment, Agriculture, Resources and Energy Committee 7 Examination of the Bill Strategic Cropping Land Bill 2011
certainly not consistent with landholders being able to make management investment decisions on how to best utilise that strategic cropping land. (Penton, Hearing Transcript, p.14)
The committee noted alternative timeframes proposed by submitters and others including 30 years (QMDC) and 20 years (Cotton Australia) as being timeframes that would better reflect the timeframes that landholders encounter in other resource planning areas (eg water resource plans and Delbessie Agreement renewals of leases) and which more realistically reflect the business planning timeframes of farms.
The Australian Society of Soil Science Inc. also echoed the concerns of others about the loss of productivity in the 50 year period, and suggested some baseline assessments at the time the development occurs so that there is a reasonable way of determining whether there has been a loss of productivity, and then for some compensation provisions to be made available for those people where there is a loss. (Briggs, Hearing Transcript, p.13) It is not clear to the committee from the Bill whether there will in fact be some form of base line assessment.
DERM advice In its advice on points raised in submissions in regard to Clause 14, DERM provided the following information:
Strategic cropping land (SCL) is regarded as a finite resource that cannot be recreated. The purposes of the Bill provided for in Clause 3 are to protect land that is highly suitable for cropping; manage the impacts of development on that land; and preserve the productivity capacity of that land for future generations. Chapter 3 of the Bill sets out the framework for assessing the impacts of development on SCL. Clause 14 defines when development has a permanent or temporary impact.
Clause 14(1) provides that carrying out development on SCL or potential SCL has a permanent impact on the land if – (a) the carrying out impedes the land from being cropped for at least 50 years; or (b) because of the carrying out, the land can not be restored to its pre-development condition; or (c) the activity is or involves- (i) open-cut mining; or (ii) storing hazardous mine wastes, including, for example, tailings dams, overburden or waste rock dumps.
The Bill’s provisions in regard to the definition of permanent impact are clear and provide regulatory certainty for proponents and decision-makers. Any of the three components of Clause 14(1) will therefore establish a permanent impact. The reference to 50 years in Clause 14(1)(a)(i) is consistent with the definition of permanent alienation in page 16 of Protecting Queensland’s strategic cropping land: A policy framework, which was released for public consultation on 23 August 2010. For development that would be permanent under the definition of 14(1)(b) or (c), it does not matter how many years it impedes cropping (ie it could be less than 50 years). Impacts from underground resource developments, like subsidence, will be considered when assessing whether a development will have a temporary or permanent impact on SCL.
Further, 14(2) provides that for subsection (14)(1)(a) it does not matter whether the impediment is legal or physical. This means that under 14(1)(a), even when a development has no physical impact on the land, but prevents cropping for 50 years, it would also be considered to have a permanent impact.
8 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
Clause 14(3) allows for a regulation to be prescribed to provide further details of the level or density for a temporary activity that is taken to be a permanent impact. Establishing criteria in Clause 14(3) for determining what may be subject of a regulation, and the process of requiring Governor in Council approval to making a regulation, satisfy the requirements of section 4(4) of the Legislative Standards Act 1992. Any activities in the future proposed to be prescribed by regulation are likely to require a RAS and associated public consultation process. Any regulation will also be subject to Parliamentary scrutiny.
Clause 14(3)(a)(ii) specifically provides that a cumulative impact may be prescribed in a regulation to be, in effect, a permanent impact. The Bill specifically provides an example of drilling or wells under a resource Act carried out on the land at a level or density which, or the cumulative effects of which, impede it from being cropped for at least 50 years.
Other legislation is in place to regulate the impacts of development on water supplies including the Water Act 2000 which addresses access to groundwater supplies and the Environmental Protection Act 1994 which addresses environmental harm caused to groundwater supplies.
Committee comment: The committee seeks clarification by the Minister as to the justification for the 50 year timeframe for permanent damage to strategic cropping land provided in Clause 14. The committee also invites the Minister to clarify whether baseline assessments and periodic reviews will be conducted at the commencement of development projects to be used for future assessments of loss of productivity of cropping lands.
The committee also invites the Minister to clarify the extent of protections the Bill would provide for strategic cropping land against alienation or damage caused by drilling and exploration for coal seam gas deposits.
The identification of strategic cropping land Chapter 2, Part 1 of the Bill provides for identifying SCL. It establishes maps for the zones, protection areas and management area, trigger maps of potential SCL and a process for deciding what land is SCL. The SCL legislation would apply to approximately 42 million hectares of Queensland, or about one- quarter of the state's landmass. Within this area, the trigger map identifies some 7.57 million hectares (4.36 per cent) of the state as areas where SCL may exist and where developers will need to undertake an on-ground assessment using the proposed criteria. Within this area, the two Protection Areas apply to a total of 4.8 million hectares (2.8 per cent of the state), of which 1.8 million hectares is identified on the trigger map as areas where SCL may exist. The Management Area covers some 37.2 million hectares (22.5 per cent) of the state, 5.7 million hectares of which is identified on the trigger map.6 Land within management areas must meet the cropping history test. Minor amendments can be made to all maps by the chief executive and are effective upon publication. The chief executive may also make amendments to the trigger map and take effect by regulation. Amendments to zones and protected areas must be made by the Minister and take effect through regulation. Proposed amendments to zones or protection areas must be advertised and open to public submissions.
6 Department of Environment and Resource Management, Strategic cropping land – frequently asked questions, http://www.derm.qld.gov.au accessed 24.11.11.
Environment, Agriculture, Resources and Energy Committee 9 Examination of the Bill Strategic Cropping Land Bill 2011
Thirty-one submission comments are about the identification of SCL, raising the following issues: Only one percent of the State may be protected from open-cut mining All SCL should be identified as protected areas The management areas are not consistent with the policy intent of the Bill; The identification of SCL is confusing Potential for new cropping zones and criteria to emerge in the future Protection areas have been designated without quantitative assessment, scientific justification and without consideration of social, environmental and economic impacts Land removed from trigger maps should be assessed “not SCL” rather than land not highly suitable for cropping Proposed new zones should be amendments to the Act and, where zones or protection areas are amended, all landholders and tenure holders should be contacted with appropriate period for submissions, eg 30 business days.
Clause 36 Ministerial notice of proposed amendment Clause 36 provides for the ministerial notice of a proposed zonal or protection area amendment. Sub Clause (2) (d) provides for a minimum of 21 days for anyone to make a submission to the Minister about the proposed amendment. The committee notes comments by the QRC and the QMDC that the 21 day period for submission is too short given the likely complexities of changes that could be proposed. Both submissions proposed that the period be extended. QMDC proposed a 28 day submission period while the QRC proposed extending it to 30 business days.
DERM advice The committee notes advice by DERM on the comments raised by the QRC and the QMDC that: The timeframe established in the Bill is consistent with the timeframes established for public notification on IDAS development applications under the Sustainable Planning Act 2009. Clause 36 provides that the proposed amendment must be published in a newspaper circulating generally in the area of the amendment and is available on the department’s website, and that These provisions do not prevent the Minister undertaking a longer or more extensive consultation process.
Committee comment: The committee is concerned that 21 days provided in Clause 36 may allow insufficient time for an affected party to become aware of a proposed zonal or protection area amendment, to seek expert advice on the proposed amendment and to then lodge a written submission with the Minister should they wish to object to the proposed amendment. The committee invites the Minister to clarify the justification for providing landholders with such a brief submission period. In our view, a 30 business day submission period, as proposed by the Queensland Resources Council, would be reasonable.
Schedule 1 – Zonal criteria for original zones Perhaps the most contentious aspects of the Bill relate to the SCL criteria provided in Schedule 1. According to the QFF, of the two years of negotiation over the bill’s development, perhaps 18 months of that negotiation was about the criteria. (Galligan Hearing Transcript, p.5.)
10 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
Fifteen submissions commented on the schedule. Points noted include: The criteria used to identify SCL are being enshrined in legislation before they have been properly field tested The criteria are “too basic for identifying SCL” Failure to identify some highly productive agricultural soils of cater for the diversity of the production system that remains viable on a variety of soil types across the State Slope and drainage criteria exclude a large amount of land already used for cropping. The slope threshold should be increased from five to eight per cent to reflect modern farming and landcare practices such as zero tillage and controlled farming that prevents erosion, and to capture productive cropping areas such as the red soils of the South Burnett area Expand the SCL assessment process to include sustainable farming methods and recent recorded productivity Dismay at the creation of yet new criteria to identify the most productive cropping land Concerns about the accuracy of data included on water holding capacity Failure to consider water resources The suggestion that the criteria should be in the regulations and easier to amend Concerns that the criteria may prevent landholders from making improvements such as laser levelling
At the public hearing the committee heard further from submitters on issues with the schedule. In their submission, Cotton Australia contended that the focus on soils allows mining companies to circumvent the SCL by moving from open-cut operations to underground operations such as longwall mining, or bord and pillar mining mechanisms. Cotton Australia further told the committee: we are greatly concerned about a couple of particular projects that are out there now, and no doubt there will be more, where the proponents believe that they will be able to still work within strategic cropping land legislation by moving towards underground mining of one form or another. I raised the particular example of mining underneath the Emerald irrigation area. It is quite conceivable, I guess, that that mining operation will not have any impact on soil quality. But certainly if there is any subsidence at all, given that irrigators laser fields within two centimetre accuracy and given that it is a gravity-fed system, subsidence of two to five or 10 centimetres, which is a very small level of subsidence, could have a very significant impact not only on the operation of agriculture in that area but also on the actual physical operation of the SunWater scheme. (Murray, Hearing Transcript, p.7)
Cotton Australia also raised concerns about focusing heavily on soils at the exclusion of other criteria: I mention the emphasis on soil rather than taking the whole mix. What makes strategic cropping land really valuable is not just soil; it is climate, it is soil and it is water resources, and that needs to be taken into account. (Murray, Hearing Transcript, p.3)
QFF raised similar concerns: We are very disappointed in some respects with the criteria being solely focused on soils. We represent a number of intensive industries, particularly the irrigation industry. Consideration for the importance of irrigation infrastructure associated with land is one key criteria. We have always felt it important to at least acknowledge in strategic cropping land in that, essentially, it would be crazy for us to be suggesting that we are going to alienate irrigation schemes in Queensland if they want strategic cropping land. So access to water is certainly one of the issues that we will be looking at in the two-year review as well. (Galligan, Hearing Transcript, p.2)
AgForce raised a number of concerns about the accuracy of the criteria provided in the Bill and the risks that the slope criteria will exclude land already being farmed: We still have a very large concern with the accuracy of some of those areas. Slope, in particular, is one that is of massive concern at this point in time, regardless of what is actually in situ. With the productive value and nature of food security and food and fibre principles coming from these landscapes, you can find a very large tract of area cut out extraordinary quickly just because of slope.
Environment, Agriculture, Resources and Energy Committee 11 Examination of the Bill Strategic Cropping Land Bill 2011
We heard the example provided this morning in regard to the Kingaroy region and some of the slope concerns up there. That would be a prime example of where you could have some of the best soils and the best applications across the state and yet it would be knocked out succinctly through the failure of one criterion which would mean on a statistical representation that you failed 10 per cent of the criteria. That to me, in my vernacular, is still a high distinction. So they still have 90 per cent capacity to prove that they have strategic cropping lands. That is an issue we still have with the criteria. (Wagner, Hearing Transcript, p.6)
QMDC questioned why criteria already in use in relation to identifying good quality agricultural land were not used for SCL: ….in relation to the best available science, early on in this debate our view was that, if we simply used the class A soils out of the GQAL existing State Planning Policy, that would have gotten us a long way in terms of clearly having an existing framework and well-trodden science to identify strategic cropping land. In fact, if we had stuck with simply saying, ‘Class A out of the GQAL existing policy is strategic cropping land compared to class B, C and D in that existing policy,’ we would have been able to use much more accurate mapping. So in terms of whether we have used the best available science, there is actually more detailed mapping available for class A soils than has been used in the trigger map. But because class A is not the criterion—there is a wider range of criteria—we have not been able to use that better mapping that does exist in large parts of the state.(Penton, Hearing Transcript p.16)
ASSSI raised a further related issue about the ability of people without appropriate skills to assess the criteria: Certainly we would like to see better definitions of what is reasonably practical. They are throwaway statements which in fact are subject to a fair bit of executive discretion. What is possible? What can be reasonably avoided? They are terms that for laymen are quite reasonable, but when it comes down to a legal situation it is quite different. … We believe that you really need to have, where there is ambiguity, people who are competent. So the view of the soil science society is that people who are deemed competent should be a certified practitioner from one of the appropriate professional bodies, not just the soil science society—otherwise it sounds like we are pushing our own barrow—but also other bodies, like the Australian Institute of Agricultural Science and the Environment Institute of Australia and New Zealand, which have certified practices for making certain that advice is given as a professional and people are prepared to sign off on it and accept responsibility for those outcomes.(Briggs, Hearing Transcript, p.12)
Committee comment: The committee seeks assurance from the Minister that the focus on soils in the criteria used to establish that land is strategic cropping land will not allow mining companies to circumvent the strategic cropping legislation by moving from open-cut operations to underground operations such as longwall mining, or bord and pillar mining mechanisms. The committee also invites the Minister to clarify whether officers of DERM who would be responsible for administering SCL are certified practitioners from an appropriate professional body such as the Australian Soil Science Society Inc., the Australian Institute of Agricultural Science or the Environment Institute of Australia and New Zealand that have certified practices for making certain that advice is given as a professional and people are prepared to sign off on it and accept responsibility for those outcomes.
Validating whether land is SCL or not Chapter 2, Part 2 outlines the process for determining whether potential SCL (as identified on the trigger map) is SCL or not. Validation applications may be submitted by the landowners, tenure holders or leaseholders (with written permission of the owner). In determining whether land is SCL, the land must demonstrate that all eight of the criteria are met, to the satisfaction of the chief executive. The eight criteria are: Slope Rockiness Gilgai microrelief
12 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
Soil depth Soil wetness Soil pH Salinity and Soil water storage.
The minimum requirements for land to be considered SCL against the eight zonal criteria varies across the Queensland’s best cropping land within five zones (Western cropping zone, Eastern Darling Downs zone, Coastal Queensland zone, Wet Tropics zone and the Granite Belt zone). These five zones reflect the regional differences in climate, land forms and cropping systems.
There are two Protection Areas (one in Central Queensland and one in Southern Queensland) and a Management Area (which includes many regions of cropping and horticultural importance to Queensland.
The Bill provides that SCL within Protection Areas will not be able to be permanently alienated except in limited exceptional circumstances. Land in both the Protections Areas and Management Area must also meet the minimum size requirement for validation as SCL.
SCL within the Management Area must also meet the cropping history test specified in the Bill. The “cropping history test” is an assessment of the land’s cropping history. For a property to pass the cropping history test, it must contain land that has been cultivated at least three times in the 12 year period between 1 January 1999 and 31 December 2010, or have had perennial crops or timber plantations on the property for three of the twelve years. This cropping history test is determined on an individual property basis.
Submissions Submitters commented extensively on the validation of SCL, those submissions noted: A validation test can be made by an eligible person who do not yet hold a resource approval Community benefit should be recognised in the cost recovery for a validation application Applying the cropping history at the property level is unclear as properties may be far larger than a parcel of potential SCL A minimum area for validation should be stated as Clause 42(d) implies an application can be made over part of a lot Distribution of soil types and resource tenures do not recognise real property boundaries The zonal criteria and threshold limits are based on flawed science as the threshold limits are too low The cropping history test contains poor criteria to identify potential SCL Interpretation of the cropping history test will not provide any useful filter Focusing on existing land use and a three year cropping history is not acceptable as the land is either SCL or not according to scientific criteria The cropping history test should exclude crops grown on properties for the feeding of livestock All types of fodder should be excluded from the cropping history test Public notice and submissions periods may unnecessarily delay development even where land is not SCL
Environment, Agriculture, Resources and Energy Committee 13 Examination of the Bill Strategic Cropping Land Bill 2011
The Chief Executive’s reasons for accepting a submission about a validation application should be recorded and made publicly available Minimum land area requirement for determining compliance with “zonal criteria” can be achieved by combining area covered by the validation application with contiguous “potential SCL” is a nonsense if “potential SCL” is shown not to be suitable for inclusion as SCL The likely outcome of nominated minimum size thresholds of SCL will be a fragmented landscape Minimum size should reflect the land area required for a viable food producing enterprise in the zone, eg. Eastern Darling Downs should be reduced to 10ha in line with the Coastal, Granite Belt and Wet Tropics zones No minimum property sizes should be included in the Bill Decision timeframes should be reviewed to align with other government decision timeframes The three month validation decision period is an inordinately long time and inconsistent with the brief period for submissions It is unclear who is entitled and therefore can expect to receive notification of the validation decision and Rights to appeal decisions should be extended to submitters.
Clause 48 Additional application requirements The committee notes comments by Xstrata Coal in their submission on this Clause. According to Xstrata: The zonal criteria and threshold limits are based on flawed science. (i) ‘The proposed criteria and thresholds are not effective and will not reliably discriminate the best cropping land from other land. The threshold limits are generally too low. This has two broad consequences; viz. (i) their usefulness is restricted to merely identifying land that is not suitable for viable farming, as opposed to distilling the “best cropping land from all other, and (ii) any viable cropping land is generally identified as SCL.” (ii) The Australian Society of Soil Science Inc. (ASSSI) provided a submission to DERM on 21 July 2011 in which they stated there were ‘dismayed at the creation of yet new criteria to identify the most productive cropping land” and highlighted “critical errors of fact” in relation to the criteria. It appears that the recommendations of Palaris and ASSI were not adopted by DERM. Given the grave concerns expressed by Palaris and ASSI it is likely that the criteria and threshold values will need significant amendment post- implementation. This will more easily be achieved is the criteria and threshold values are listed in regulation or guidelines.
Xstrata recommended the removal of the criteria from Part 2 of the Bill and that it be placed in subordinate legislation.
DERM advice DERM told the committee that a technical assessment involving detailed checking of 128 sites across the five strategic cropping land zones—Granite Belt, Wet Tropics, Coastal Queensland, Eastern Darling Downs and Western—and an independent expert review was undertaken to ensure the criteria are scientifically robust. On 14 April 2011 the proposed criteria were publicly released, along with the technical assessment report and independent expert review. Further detail about the consultation undertaken in developing the criteria is outlined in the Consultation Briefing on the Strategic Cropping Land Bill 2011 prepared for the Environment, Agriculture, Resource and Energy Committee.
14 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
Including the criteria and thresholds in the Bill satisfies the requirements of the Legislative Standards Act 1992. The criteria are a fundamental part of the Bill and will determine how the Act will affect individuals’ rights and liberties. Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation Committee. The Committee’s functions will be to give the Minister independent scientific and technical advice about the administration of the Act relating to soil and land resources and other matters decided by the Minister. These matters can include advice on the criteria and the thresholds. Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but before 30 January 2016. The committee notes DERM’s advice on the points raised by Xstrata on this Clause.
Committee comments: The committee invites the Minister to respond specifically to the points raised by Xstrata Coal in relation to Clause 48.
Clause 49 when a property has the required cropping history Nine submissions commented on the cropping history test prescribed in Clause 49. Points noted include: The cropping history test is extremely weak to the extent that it will prove largely irrelevant, and a poor criteria to identify SCL for the future A total of three crops or three cultivations in a 12 year period would hardly indicate the land is of value for food production security The criteria for determining “required cropping history” under section 49(1) are expressed in terms of specified uses operating on any of the property. That criteria should be expressed in terms of the majority of the property so as to negate the effect of a tiny incursion triggering a decision that "required cropping history" has been shown. The term "timber planation" is used for determining "required cropping history" in section 49(1) (b). That term needs to be defined, especially given the statement in subsection (2)(b) that the materials do not need to be for sale as well as the specific exclusion in section 50 that cropping history does not apply to "domestic purpose" activities. an abandoned orchard from which fruit has not been harvested during the last decade and which has gone wild could be treated as having cropping history over the period the Clause poses a risk to the protection of SCL because developments are likely to occur within existing and/or future food production areas. There are large areas of Queensland where properties consisting of contiguous lots cover significant land areas.
At the public hearing the committee heard further from submitters about the cropping history test: The QFF told the committee: The cropping history test I will be more scathing of. It is quite ridiculous, to be honest. It is going to impose a bizarre administrative burden—a final hurdle. Really, if you look at the criteria in the bill closely, it would be very rare for anything that was satisfactory cropping land to have not been cropped within that period. It is quite pointless how it has ended up and I never understood the point in the first place. I would also reinforce that by saying that the trigger maps that are referenced in the bill are built on data that includes whether the land that those maps are based on was ever cropped. So validating on the trigger maps that land has been cropped has already been done via the trigger map. What part of this process should be telling us is that as a state we have very poor soil data in some places and excellent soil data in some others, and this should be about improving our data set collectively for the industry and for the public, but cropping history has been mapped and does not need to be one of the criteria. (Galligan, Hearing Transcript, p.6)
Environment, Agriculture, Resources and Energy Committee 15 Examination of the Bill Strategic Cropping Land Bill 2011
AgForce told the committee: ….there are a number of issues that preclude a particular landholder from undertaking those activities for upwards of a generation, regardless of the soil condition or the actual quality of the landscape. The commodity prices at the time and the skill sets and knowledge an individual had may have precluded them from cropping that for upwards of a generation. That would therefore knock it out within a management area to be strategic cropping land. (Wagner, hearing Transcript, p. 6)
Similarly as noted by QMDC: We should just be relying on the soil criteria alone and not needing to look at cropping history. That has a whole lot of vagaries in terms of previous ownership and the capacity of previous owners—whether they like cattle or do not like cattle. There are all sorts of reasons why people do and do not crop historically. We should be basing this bill on the soil criteria alone. (Penton, Hearing Transcript, p.11)
Committee comment: The committee seeks the minister’s assurance that the cropping history test will provide an effective and workable filter for identifying land that is strategic cropping land, and will not unduly constrain development applications relating to land that is of dubious strategic cropping value.
Assessment of the development impacts on the land Chapter 3 of the Bill sets out the development assessment requirements for development approvals under the Sustainable Planning Act 2009, environmental authorities under the Environmental Protection Act 1994 and the resource authorities under the various resource acts.
Development must avoid or minimize impacts upon SCL. Conditions may be imposed upon development or resource approvals to restore land to pre-development condition, in the case of temporary impacts and manage, restrict or prohibit any more permanent impacts. The Bill provides for a State Planning Policy (SPP) in respect of SCL to be made under the Sustainable Planning Act 2009. Concurrence agency roles and referral triggers will be provided in the Sustainable Planning Regulation 2011. Thirty-three submissions commented on the development assessment provisions of the Bill. The points noted include: Penalising the productive use of potential SCL, even for temporary purposes is not justified Preliminary approvals or the first in a series of contemplated related approvals are not protected in the same way as developments authorised under development approvals Proposed resource activities on land to be deemed SCL will not be able to be reinstated or restored to SCL condition The requirement for a SPP for SCL is questioned given the existence of SPP 1/92 Clarification is required in relation to a code for the carrying out of resource activities on SCL A regulation and standard conditions code must address construction, operations, products and wastes in relation to resource activities, and Development requirements should be included in the Sustainable Planning Act 2009.
Projects to be approved in exceptional circumstances Chapter 4 of the Bill permits categories of development, likely to have permanent impacts on SCL in a Protection Area, to be prescribed exceptional, by regulation. Major renewable energy projects will be a prescribed category of exceptional circumstances.
16 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
Also permitted, are individual projects likely to have permanent impacts on SCL in Protection Areas where exceptional circumstances are demonstrated. In order to demonstrate exceptional circumstances, a project must satisfy the test for exceptional circumstances ie there are no alternative sites where development could reasonably be located and the development has significant community benefit. The Coordinator-General and the Minister can decide exceptional circumstance applications. Thirty-nine comments in submissions were on the exceptional circumstance provisions. Comments included: Section 113 is a complex section and it is difficult to understand a legitimate need for it There is no definition for an “overwhelmingly significant opportunity of benefit to the State” There is ambiguity about the factors to be taken into account when “benefit” of development is weighed against the need to protect SCL There is ambiguity in the policy – what is “over riding public need” Exceptional circumstances should not encroach on SCL Submission periods should be extended More appropriate definitions are required and clarification as to what is reasonably practical so that exceptional circumstances decisions are consistently applied Clarification of definition of exceptional circumstances criteria is needed No resource development for coal could ever pass the exceptional circumstances test as currently presented No criteria for “no alternative site” The alternate site test for resource projects seems designed to be unable to be passed whereas the equivalent test for development applications is quite loose The significant community benefit provisions go beyond the intent of the policy making it very difficult for any non-community project to satisfy the tests “Significant community benefit can not be solely based on the profitability of the carrying out of development or its economic benefit to the state”. At the hearing, ASSSI summarised the concerns of submitters, as follows: …my concerns are, as has been mentioned, the definition of the criteria, because I do not believe they are appropriate, particularly the ability of people without appropriate skills to actually assess them. That is both at the field level and at the government agency level. [Ms Cartwright] already mentioned exceptional circumstances. While the bill does give some information on that, it is more about the process for establishing that rather than what the exceptional circumstances might be and the sorts of conditions that might apply. Certainly we would like to see better definitions of what is reasonably practical. They are throwaway statements which in fact are subject to a fair bit of executive discretion. What is possible? What can be reasonably avoided? They are terms that for laymen are quite reasonable, but when it comes down to a legal situation it is quite different... (Briggs, Hearing Transcript, p.12) Committee comment: The committee requests clarification by the Minister of the criteria she will require to be met in respect of applications for exceptional circumstances, ensuring consistency in decision making and that decisions will not be based solely on profitability and economic benefits of the project. The committee seeks such clarification to allay concerns of benefit to one industry over another or private interests over public. The committee invites the Minister to provide examples of other matters requiring ministerial discretion and community benefit tests and the criteria applied in such cases.
Recommendation 2 The committee recommends that Chapter 4 Part 2 be redrafted to clarify meaning and remove ambiguity from the application of the exceptional circumstances test.
Environment, Agriculture, Resources and Energy Committee 17 Examination of the Bill Strategic Cropping Land Bill 2011
Mitigation Chapter 5 of the Bill establishes the framework for mitigation requirements where development will permanently impact on SCL. The Bill makes the carrying out of development prior to fulfilling the requirement to mitigate an offence.
Mitigation may occur through entering into a mitigation deed with the chief executive or by payment made to the mitigation fund. The government will administer the mitigation fund and seek advice from a community advisory group before making a decision on expenditure from the fund or entering a deed.
A number of submissions commented on the provisions of the Bill related to mitigation. Points noted included: Mitigation should not be seen as a way for mining to proceed on SCL It assumes a developer can buy his/her way out of the Act’s intention to protect SCL Valuation must include present and future losses of productivity, productive efficiencies and land values Mitigation may not be a deterrent to miners to avoid having permanent IMPACTS ON scull Omitting mitigation value from the Act adds further uncertainty to the future viability of resource development in Queensland The Act should set down some principles to guide the development of the regulation prescribing the mitigation value There can be no sensible discussion on the impact of the mitigation provisions until it is understood what rate will be prescribed in the regulations Funds in the Strategic Cropping Mitigation Fund must be used exclusively for activities that will benefit cropping land – the Bill needs to be amended to include more stringent provisions on the use of the funds and no payment for government administration activities
During the public hearing the committee heard further from submitters on issues affecting the mitigation provisions of the Bill, particularly whether it is possible to restore permanently alienated SCL. QFF noted: I think what Growcom has raised and a number of submissions have raised is that people have seen no evidence that gives them any confidence that restoration can happen, particularly in higher value cropping areas. I guess the risk is borne out in how well the bill portrays the appropriate precautionary principle in terms of making planning decisions, and that is what we are relying on. The uncertainty is there. Once a decision is made to allow resource development to occur, nobody has given me or any of my members any information that demonstrates that rehabilitation would come back to a level that would be satisfactory. (Galligan, Hearing Transcript, p.4)
As noted by the president of AgForce: To my knowledge, nowhere in the world has land been repatriated back to its original state. (Finlay, Hearing Transcript, p.4)
QFF also told the committee that no evidence was presented to the advisory committee for the development of the Bill about the science of rehabilitation being successful. (Galligan, Hearing Transcript, p.4) AgForce raised similar concerns: The other difficulty we have is, as was discussed earlier, the unproven nature of research. We could find that a lot of investment is put into a specific area to no eventual outcome, no effect or, indeed, even the possibility of a negative impact because it was a trial by error and it did not succeed. So there are issues not just pertaining to the dollar value that will be provided as what can only be called a buy-off mechanism, because if you have gone down the path of avoidance and minimisation and now you are writing out a big cheque to mitigate, there are vagaries and virtues
18 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
around the ethics of that to start with as far as AgForce believes. What you are paying for, the value of what you are paying and what that will deliver are still concerns. (Wagner, Hearing Transcript, p.5)
In their evidence, the QRC also raised doubts about the ability to restore strategic cropping land as distinct from grazing land: What was missing in the discussions earlier around this question was people saying that in Queensland the industry has only rehabilitated back to grazing land, but largely industry has only operated in grazing land, so the rehabilitation has been in accordance with what was the land use before the industries operated. If you asked me if I could put my hand on my heart and say that I could categorically guarantee that it would be absolutely 100 per cent schmick if you went into the best, most productive acre of Queensland and dug it up and whether in 50 years it would it be back to where it is, I would say that I do not know. But I think it is important that the bill should create the ability for new technologies and new approaches to demonstrate that capacity. (Barger, Hearing Transcript, p.22)
The Golden Triangle Community Group also told the committee there is no evidence that cropping land of the type found in the triangle can be or ever has been successfully rehabilitated: Subsidence of up to one metre is not manageable, as suggested by Bandanna Energy. (Bradford, Hearing Transcript, p.26)
ASSSI told the committee that rehabilitation of Queensland’s predominantly clay soils may be particularly problematic: Certainly from our experience the clay soils which form the bulk of our productive soils in Queensland are not amenable to reclamation because of their particular physical and chemical properties. We have looked at work over the states. We have members who are also members of the mining industry who believe that evidence of reclamation of mined soils in the state have been for lighter textured soils, which are less appropriate. (Briggs, Hearing Transcript, p.13)
QFF also raised concerns about the lack of clarity in the bill as to the standard of rehabilitation that will be required under mitigation. They told the committee: In relation to a technical point on the bill in terms of mitigation, the bill does not actually outline what standard of rehabilitation will be required so there has always been quite a bit of debate—and it is still not cleared up in the drafting of the bill—as to whether or not rehabilitation or restoration would be required back to any level of SCL. Does that land just have to get back to be able to meet the SCL criteria, or does it have to get back to the productive state given loss of productivity is now one of the effects under the bill? Will there need to be a measure of the productivity of the land before it is alienated and therefore it needs to be brought back to that productive state? Or is it just a matter of getting the soil back to a status that would meet the criteria under any assessment or the level at which it met the assessment prior to development? None of those questions are clear to be honest, let alone the uncertainty over whether or not it could be restored at all. (Galligan, Hearing Transcript, p.4)
In their evidence, FutureFoods Queensland recommended that, given that the Bill would permit underground mining of SCL, an arrangement where substantial bonds are required from companies involved in underground mining to as an incentive to ensure that land is rehabilitated: The legislation gives mining companies the opportunity to underground mine under strategic cropping land. Our experience in the Emerald area shows that, although you do rehabilitate the top, the land there that has been mined underground is now not suitable for cropping; they have gone back to grazing land. We are suggesting that bonds be held and that companies be made liable—substantial bonds. (Wilson, Hearing Transcript, p.26)
Concerns about the rate that mitigation would be charged The committee noted that the rate at which mitigation costs would be levied is not prescribed in the Bill and would be set by regulation. AgForce raised concerns about the level at which the costs would be levied: We very much have concerns over that rate, not just for what the valuation of the landscape is as we were saying earlier compared to its production capacity, as was discussed this morning by the committee. There are also the vagaries and issues of not just the economic climate but also the commodity climate. That was one of the issues that was raised this morning. The tertiary point to that is the unknown capacity of what is actually being invested in through those mitigation mechanisms. We have little detail at this time of who the participants will be within those community advisory groups, as they are proposed. There is some discussion of utilising some mechanisms, like regional NRM groups;
Environment, Agriculture, Resources and Energy Committee 19 Examination of the Bill Strategic Cropping Land Bill 2011
we do not believe they actually would have that much proficiency within the area. But there is no discussion, for instance, about the utilisation of the research development corporations specifically pertaining to these fields and these areas and the information they could portray and provide. (Wagner, Hearing Transcript, p.5)
Use of mitigation funds As noted in submissions, FutureFood Qld called for controls in the Bill to ensure that moneys in the mitigation fund are used exclusively for the benefit of cropping lands: We would also like to support changes to the legislation ensuring that money that is taken from the mitigation fund is used exclusively for the benefit of cropping lands. In a lot of cases we see that money collected goes straight into general revenue and never goes back to where it was meant to go. (Wilson, Hearing Transcript, p.25)
Committee comments: The committee notes the strong views expressed in submissions and at the hearing that the premise that strategic cropping land can be restored to its original productive capacity after permanent alienation by developments such as resource extraction. Witnesses who commented on this issue told the committee that there is no scientific basis for claims that strategic cropping land as distinct to grazing land can be rehabilitated.
Transitional project arrangements Chapter 9 of the Bill provides transitional arrangements for resource development projects that have not received their final approvals prior to the commencement of the Act. Projects that had achieved identified assessment and approval milestones on or before the identified dates, will not be subject to the Act or will be captured, but not subjected to the full SCL framework. Projects that had not achieved the milestones will be subjected to the full framework established under the Act. Mining and petroleum lease applications that had received their draft environmental authority under the EP Act, or had completed the Environmental Impact Statement (EIS) stage of their application on or before 31 May 2011 are excluded from the application of the SCL Act. These developments will be assessed under the EP Act and the relevant resource act as if the Act had not commenced. Mining and petroleum lease projects that will have a permanent impact on SCL or potential SCL, may be able to proceed without demonstrating exceptional circumstances where, on or before 31 May 2011: the application for the project had been made, and the project had finalised EIS terms of reference, and either a certificate of application was issued for the mining lease application or the petroleum lease application complied with the relevant requirements under the Petroleum Act 1923 or the Petroleum and Gas (Production and Safety) Act 2004.
Petroleum lease applications that were not submitted on or before 31 May 2011 may still achieve the milestones where a current authority to prospect (ATP) is in existence and the project has finalised EIS terms of reference for an area which includes the area of the ATP. While these projects will be able to proceed even where they have a permanent impact on land, an SCL assessment under the Act will still be required and to SCL conditions may be imposed. Projects will be required to mitigate their permanent impacts in accordance with Chapter 5 of the Bill. A number of submissions commented on the transitional provisions. Points noted include: The level of protection offered to projects that fall within the scope of Division 3 of Part 3 of Chapter 9 is far lower than the industry expected on a reasonable interpretation of the policy document released by the government The provisions are very complex
20 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Examination of the Bill
It is not clear that circular cross-referencing delivers on the intent of the policy and a number of QRC members are concerned that they do not have the transitional status they thought they had The current operation of the transition provisions creates a significant financial impact to Macarthur Coal Limited that was not anticipated – investment decisions have been made that did not anticipate these additional costs.
Clause 282 Future mining lease relating to EPC 891 & Clause 283 SLC protection conditions imposed In DERM’s briefing for the committee, Deputy Director General, Mr Chris Robson, explained that the introduction of new regulations necessitates the assessment of some issues on a "case-by-case" basis: The government allowed Bandanna Energy to progress with its Springsure Creek project as its terms of reference had been assessed by the Department of Environment and Resource Management and were about to be advertised when the transitional arrangements were announced on 31 May 2011. Strict requirements are imposed on this project to minimise the potential impacts it may have. (Robson, Departmental Briefing Transcript, p.8)
On questioning from the committee, Mr Robson explained the reasons for the specific transitional arrangements for Bandanna Energy's Springsure Creek exploration:
As I indicated, the assessment in terms of finalising the EIS terms of reference for the Bandanna Energy projects, in particular for their Springsure Creek project, was administratively effectively completed by 31 May. But part of the process of finalising EIS terms of reference administratively is to publish them, and that was the step that had not yet been done... So it was a matter of two days. That is when, on consideration, it was accepted that they would fall in the transitional arrangements, but we had to make special provisions because they were clearly outside the clear intent. So they are now obliged (a) to be an underground mine and (b) to take all appropriate necessary steps to the maximum extent possible to rehabilitate any adverse effects they may cause on the strategic cropping land." (Robson, Departmental Briefing Transcript, p.10).
Clauses 282 & 283 within the transitional provisions attracted 37 comments from submitters. Points noted include: Transitional arrangements are exceptional circumstances and the provisions provided are generous to the point of devaluing the enduring impact of the legislation. The arrangements are not transparent in that neither the community nor affected industries can observe the status of existing projects or the basis upon which transitional status was based. Clauses 282 and 283 should be deleted. Springsure Creek should not be excluded from the SCL Bill. Special exemptions in the Bill with benefit to private individuals or companies is against the oath of MPs. AgForce is extremely concerned regarding the processes behind which this deal has been undertaken and we seriously question the validity of the SCL policy platform when the first time it is tested it appears to have failed to protect SCL.
At the public hearing the committee heard further from submitters about Clauses 282 and 283.
QFF told the committee: The other area of major concern which I guess underpins people’s overall confidence in this bill is the special transitional arrangements that have been granted to the Springsure Creek proposal. I can understand the need for transitional arrangements and I do not like retrospective legislation and people have obviously made investments along the way. But in this particular case the date was set, that date was not met and now special transitional arrangements have been made for that particular project. That really undermines the confidence not only in that particular decision but in the
Environment, Agriculture, Resources and Energy Committee 21 Examination of the Bill Strategic Cropping Land Bill 2011
whole bill because other people are going to come along and say, ‘We’ve got exceptional circumstances. How is that going to be dealt with?’ I think those transitional arrangements do have to be struck out of this bill and the proponents of that particular application need to then work within the requirements of the strategic cropping land legislation. (Galligan, Hearing Transcript, p. p.3)
The Golden Triangle Community Group told the committee the Springsure Creek coal project or EPC 891 makes up more than ten per cent of the total area identified as strategic cropping land in the central protection zone. On this basis, they suggested to the committee that the Clauses 282 and 283 seem to be a contradiction of what the Bill is about: the protection of strategic cropping land. (Bradford, Hearing Transcript, p.26)
It appears that Bandanna Energy is also unhappy about the special transitional arrangements provided for their Springsure Creek Coal Project, but for a different reason. Their representative told the committee the company would like their project to be treated in the same way as other pre project approval 31 May 2011 projects, and consistent with undertakings provided by the Treasurer in a letter to the company head. (Batcheler, Hearing Transcript, p.20)
Committee comments: The committee invites the Minister to clarify whether the transitional arrangements provided to Banadanna Energy differ from transitional arrangements available to other resource project applicants, the quantity of SCL that will be impacted by the Springsure Creek Coal Project and whether the impact will be permanent or temporary. In respect of permanent impacts, the committee invites the Minister to outline the conditions that Bandanna Energy will be required to comply with to ensure that any SCL affected by the project is restored to its full productive capacity.
22 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Fundamental legislative principles
3 Fundamental legislative principles
Section 4 of the Legislative Standards Act 1992 states that ‘fundamental legislative principles’ are the ‘principles relating to legislation that underlie a parliamentary democracy based on the rule of law’. The principles include that legislation has sufficient regard to: the rights and liberties of individuals, and the institution of parliament.
The committee sought advice from DERM in relation to possible fundamental legislative principle issues and other issues affecting Clauses 34, 90(2), 99, 118, 137(4), 164(4), 193, 197, 198, 201, 215, 216, 218(2), 225, 227-9, 243, 257, 268 and 281, and Schedule 2 of the Strategic Cropping Land Bill 2001, and the explanatory notes to the Bill. The following sections discuss the issues raised by the committee and the subsequent advice provided by the Director-General of DERM on 17 November 2011.
Right and liberties of individuals Does the bill have sufficient regard to the rights and liberties of individuals? - Clauses 99, 137(4), 164(2)
Clause 99 provides that an SCL ‘protection condition’ may, inter alia, prohibit, limit or restrict the carrying out of a resource activity on land or part of it; may require the applicant to install and operate stated plant or equipment in a stated way within a stated period; or may require the applicant to do or refrain from doing anything else the chief executive considers is necessary or desirable to achieve this Act’s purposes.
Issue – this Clause prima facie conflicts with the right of a holder of an estate in fee simple (an owner) to deal with their land as they choose.
Request for advice: The committee sought assurances from DERM that such derogation from the rights of a property owner is justified in furtherance of this bill’s aims.
DERM’s advice The purpose of the Strategic Cropping Land Bill 2011 is inter alia, to protect strategic cropping land and manage the impacts of development on that land. Cardinal to achieving the purposes is the ability for the chief executive to impose suitable conditions on developments occurring on strategic cropping land to ensure impacts are avoided, minimised and restored to the greatest extent possible. Analogously, these powers reflect the conditioning provision provided under the Environmental Protection Act 1994 (section 305), to ensure Queensland's environment is protected in a fashion consistent with the principles of ecologically sustainable development, and under the Sustainable Planning Act 2009 to ensure that planning instruments can plan for the appropriate use of land and development assessment can regulate uses in the interest of the state and local communities.
Clause 137(4) states that the mitigation requirement applies and continues to apply even where, for land that was potential SCL and identified as permanently impacted land, after that identification, the land is either recorded in the decision register as decided non-SCL or the trigger map is amended under Clause 34 to remove the land as potential SCL. The mitigation requirement is fulfilled by entering a mitigation deed or making a payment to the mitigation fund.
Environment, Agriculture, Resources and Energy Committee 23 Fundamental legislative principles
Issue – it is unclear what justification exists for continuing to require that mitigating action be taken by a landowner for land after it has been either removed from the trigger map as potential SCL or it has been recorded in the decision register as decided non-SCL.
Request for advice: The committee asked DERM to explain the justifications for these requirements.
DERM’s advice The justification is two-fold and relates to: (1) the risk adopted and accepted by the development proponent, when they elect to be assessed against the SCL trigger map, rather than applying to validate the extent of the SCL on the land; and (2) the need to avoid placing the mitigation burden on the community and the government where commercial and funding commitments have been made under the mitigation requirements, which could later be abrogated (if the Bill section 137(4) did not exist) should the land be subsequently validated (and potentially by a third party) as non- SCL. When seeking an SCL assessment, the development proponent may validate the land to confirm the extent of the SCL which may be permanently or temporarily impacted by the development; or they may elect to treat the trigger map as an accurate indication of the SCL to be impacted by their development. The risk associated with electing to adopt the SCL trigger, is that should a validation ultimately be conducted on that land, including by another party the extent may not be as uniform as demonstrated by the trigger map and therefore some areas assessed as being permanently impacts SCL, may not be SCL at all. This is a risk that is determined by the applicant when they make their application. Clause 137 (4) merely clarifies the implications of this risk. A development proponent may fulfil their mitigation requirements by entering into a mitigation deed (a contract with the government) or via a payment into the mitigation fund. Under the mitigation deed, the development proponent may commit to undertake activities, or engage a third party to undertake activities that would meet the development's mitigation requirements. Alternatively where money is paid into the mitigation fund, the government may allocate funds within local communities to undertake activities to, inter alia, improve productivity for the industry and local cropping systems. These arrangements are entered into in good faith that the deed contracts will be fulfilled and that funding will not be withdrawn once it has been granted. It would be a perverse outcome of the mitigation framework if the development proponent has the option of assuming the risk associated with electing to be assessed against the SCL trigger map, but then consequent to the land being identified as non-SCL, the businesses, community and the government were responsible for the remaining debt /costs associated with the incomplete deeds and grant funding.
Clause 164(1) applies where a recipient of a compliance notice contravenes the notice, whether or not a proceeding relating to the contravention has been started.
Clause 164(2) allows compliance action by an authorised person enabling them to use reasonable force and take any other reasonable action to stop the contravention.
Issue – whether it is appropriate to allow an authorised person (who is not a police officer and not subject to a similar disciplinary regime/standards) to use ‘reasonable force’ to stop a contravention of a compliance notice. ‘Reasonable force’ is not defined in this statute but what is appropriate/reasonable force has long been the subject of numerous judicial considerations in various contexts and jurisdictions. Authorised (departmental) officers will (likely) lack the training in what is appropriate and reasonable force that is provided to cadet police in their training, and no guidance is offered by this bill as to what constitutes reasonable force to stop such a contravention. Presumably the contravention of a compliance notice would potentially involve actions that create environmental damage, rather than any imminent threat of personal injury.
24 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Fundamental legislative principles
Request for advice: The committee DERM to advise the justification for providing departmental officers with authority to use any level of force to stop the contravention of an administrative instrument such as a compliance notice.
The committee sought DERM’s advice, and some examples, as to what in the department’s view would constitute ‘appropriate/reasonable force’ by authorised persons under Clause 164(2) to stop the contravention of an administrative instrument such as a compliance notice.
The committee sought DERM’s advice as to the department’s liabilities arising out of claims by individuals in respect of personal injuries or other damages sustained during actions by authorised officers under Clause 164(2).
DERM’s advice Clause 164 of the Bill only confers authorised persons with the power to use reasonable force or any other reasonable action to stop a contravention with a compliance notice that had previously been issued. It does not confer power on an authorised person to use any level of force, in relation to any functions under the Bill. As the Committee indicates, these notices can only be issued by an authorised person who has been appointed by the chief executive. The chief executive may only appoint persons as authorised officers who have the necessary expertise or experience to undertake the activities required by the authorised person role. The department undertakes training for all authorised persons, generally and in relation to specific powers conferred under legislation. The reasonableness of the force exerted is to be context by the circumstances to which it is applied. Under the Bill, it would be sound interpretation to determine reasonableness in the context of the functions of the authorised persons, to whom the power is granted. These provisions are necessary to ensure the effective enforcement of the Act.
These powers conferred under Clause 162 are similar to existing provisions under other Acts. An example of comparable provisions being invoked for a compliance activity under an existing Act includes cutting a lock or chain on a gate to gain access to the site the subject of the compliance notice. Additionally, in conjunction with Clause 223 of the Bill an authorised person may take reasonable steps (reasonable to the common person) to prevent the continuation of an ongoing offence for which the stop work and/or restoration notice has been issued. In this context, reasonable force may include disabling equipment; parking a vehicle across access points; physically seizing an implement or tool to prevent further contravention. There may be instances whereby an authorised officer may be required to use reasonable force on another person, but it is likely that where an incident such as this arises the authorised person may liaise with the Queensland Police Service. It is important to reiterate the point made in response 1— the reasonableness of the force exerted is to be context by the circumstances to which it is applied. Clause 221 provides for a person to claim compensation from the State for loss or damage suffered by a person because of the exercise, or purported exercise of a power by an authorised person. This provision does not preclude loss or damage caused by an authorised person using reasonable force to stop a contravention, pursuant to section 164(2).
Therefore a person injured by an authorised person taking action to stop a contravention of a compliance notice, would have a statutory right of compensation through section 221. The injured person may also have a right to compensation under the Civil Liability Act 2003 and through a common law claim for negligence, apart from section 221. Similar provisions exist in many other Queensland Acts including for example, the Vegetation Management Act 1999 and the Aboriginal Cultural Heritage Act 2003.
Onus of proof Does the bill reverse the onus of proof in criminal proceedings without adequate justification? – Clauses 243 & 257
Clause 243 requires the executive officers of a corporation to ensure the corporation complies with each SCL offence provision of the proposed Act. If a corporation commits an offence against an SCL offence provision, each of the corporation’s executive officers also commits an offence (of failing to ensure the corporation’s compliance with the provision) - 243(2). Evidence that the corporation has been convicted of an SCL offence is evidence that each of the executive officers committed the
Environment, Agriculture, Resources and Energy Committee 25 Fundamental legislative principles offence of failing to ensure the corporation’s compliance with the provision (243(3)). It requires an executive officer to prove, in his or her defence, that he or she, (if in a position to influence the conduct of the corporation in relation to the offence) exercised reasonable diligence to ensure the corporation complied with the provision; or he/she was not in a position to influence the conduct of the corporation in relation to the offence.
Issue - Such a provision may have insufficient regard to the rights and liberties of individuals as it imposes an evidential burden on an accused person. We note the explanatory notes do not address the reversal of onus other than to summarise the operation of the provision, and offer no explanation or justification in respect of it.
Request for advice: The committee sought DERM’s advice as to the justification for the reversal of the onus of proof in Clause 243.
DERM’s advice Clause 243 states that the executive officers of a corporation must ensure the corporation complies with the Act and that if a corporation commits an offence against the Act, each of the corporation's executive officers also commits an offence. The provision for individual responsibility for corporate officers for actions which they have ultimate control is necessary for the effective enforcement of the Act and ensuring the purposes of the Act are achieved. Defences have been provided in Clause 243(4) where an executive officer can prove that the officer exercised reasonable diligence to ensure the corporation complied with the provision, or that the officer was not in a position to influence the conduct of the corporation in relation to the offence. Making executive officers potentially personally liable for the actions of the corporation reduces the risk of an SCI, offence being committed which may cause irreversible damage to the strategic cropping land resource. The provision is also aimed to encourage the corporation to establish procedures to ensure that employees, particularly those involved in the development activity are fully aware of the requirements under the Act and environmental and resource authorities regarding strategic cropping land. Similar executive officer liability provisions exist in many other Queensland Acts including for example, the Environmental Protection Act 1994; the Workplace Health and SafetyAct 1995; and the Transport Operations (Road Use Management) Act 1995.
Clause 257 applies to a proceeding for an offence against this Act where a person’s state of mind is relevant to the offence. Per Clause 257(2) it is enough to show that the conduct was engaged in by a representative of the person (e.g. employee, agent) within the scope of the representative’s actual or apparent authority and the representative had the relevant state of mind. Conduct engaged in for a person by a representative within the scope of the representative’s actual or apparent authority is taken to have been engaged in also by the person unless the person proves (if they were in a position to influence the representative in relation to the conduct) that they took reasonable steps to prevent it; or, alternatively, that they were not in a position to influence the representative in relation to the conduct.
Issue - This Clause imposes an evidential burden on a person to prove that they could not influence the conduct of their representative/agent/employee. The explanatory notes again do not address this reversal of evidentiary burden.
Request for advice: The committee sought DERM’s advice as to the justification for the reversal of the onus of proof in Clause 257.
DERM’s Advice Clause 257 provides direction on the evidentiary requirements for determining state of mind where the offence has been committed by a person's representative. Situations where this provision is likely to apply include cases where the principal—the person in the superior position in the relationship—is held liable for the actions of their representative.
26 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Fundamental legislative principles
The provision for a principal's vicarious liability for the actions of their representative that amount to an offence against the Act is necessary for the effective enforcement of the Act and ensuring its purposes are achieved. In these cases the principal is considered to be in a position of responsibility, with ultimate control over the actions of their representatives. Defences have been provided in Clause 257(3) where the principal can prove that the representative took reasonable steps to prevent the conduct that lead to the offence or that the person was not in a position to influence the conduct of the representative in relation to the offence. Similar liability provisions exist in other Queensland Acts including for example, the Environmental Protection Act 1994 (section 492).
Power to enter premises Does the bill confer power to enter premises and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer? – Clauses 193, 197/198 & 201
Clause 193 outlines general search powers for authorised persons administering this proposed Act. The conditions on which things and documents may be seized and retained or returned are also specified.
The committee noted the wide general post-entry powers conferred in Clause 193 for searches, and the broad seizure powers conferred under Clauses 197 and 198.
Evidence may also be seized from a place entered with consent or under a warrant. If entry is under a warrant, the officer may seize the evidence for which the warrant was issued (Clause 198(3)), and may also seize anything else at the place if the officer reasonably believes the thing is evidence of an offence against the Act and the seizure is necessary to prevent the thing being hidden, lost or destroyed (Clause 198(4)). Such a thing might reasonably be a laptop or USB containing commercial/private financial documents. Such devices may also contain other non-relevant and potentially personal/confidential information. A thing may also be seized, or powers may be exercised over a thing, despite a lien or other security over it claimed by another person (Clause 200(1)).
Where a thing has been seized under this division, an authorised officer may remove it or leave it where it was seized and take reasonable steps to restrict access to it (Clause 201(1)). In respect of equipment, that can extend to making it inoperable by, for example, dismantling it or removing a component without which the equipment cannot be used (Clause 201(2)(b)). Assuming such thing might be a computer containing documents relevant to an alleged offence against this Act, rendering it inoperable may impact on the rights of the person being investigated in ways not connected to their alleged offence against this Act, or may impact on other members of their household who would ordinarily use that equipment. The committee notes that this provision could in effect remove or disable a key point of communication and/or a key archive of business and personal information for a considerable period of time. This could have particular impacts on people in remote locations.
Request for advice: Given the breadth of these entry, search and seizure powers, especially as they impact on the rights of property owners, the committee sought DERM’s advice as to: – the justification for such broad general search and seizure powers – the likelihood that such powers would unfairly impinge on the rights of individuals – the circumstances where the department envisages that authorised officers would need to remove or disable key equipment such as computers or USB storage devices, rather than copy the information held on the equipment at the time and on site, and – what safeguards the department would introduce to ensure the rights of individuals affected by these provisions are protected.
Environment, Agriculture, Resources and Energy Committee 27 Fundamental legislative principles
DERM’s advice The breadth of the search and seizure powers is necessary to ensure authorised persons have the appropriate powers to conduct investigation and compliance actions under the Act. A large variety of development activities will be regulated by the Bill, requiring flexibility for authorised persons to take appropriate actions pertaining to the activities being undertaken and evidence on hand.
The powers imparted to authorised officers for search and seizure is suitably constrained by the entry power requirements which must be invoked, prior to the search and seizure powers being relied upon. It is considered that entry, search and seizure powers are a suitably proportionate approach to the enforcement provisions of the Bill which aim to prevent or diminish the significant impacts that may arise from non-compliance with the Act and bring responsible persons to bear for the offence. Similar liability provisions exist in other Queensland Acts including for example, the Environmental Protection Act 1994 (section 460) and the Waste Reduction and Recycling Act 2011 (section 211).
The identified provisions are unlikely to unfairly impinge on individuals rights. The powers may only be applied where the authorised person has entered the land under Clause 178 of the Bill, and subsequent procedural provisions. Inter alia, the powers may only be applied where the authorised person is on the land by virtue of the owners or occupiers consent or by warrant issued by a Magistrate. Therefore the Bill provides sufficient safeguards to ensure that the rights of individuals are not unfairly impinged. As indicated above, a large variety of development activities will be regulated by the Bill, requiring flexibility for authorised persons to take appropriate actions pertaining to the activities being undertaken and evidence on hand. It is difficult to envisage cases where an authorised person would need to seize computers or data storage devices. However, the seizure powers under Clause 201 could plausibly be applied in circumstances where earth moving equipment, for example, is used to impact strategic cropping land without the required development approval or resource authority. A component of the equipment, such as the key, could be removed to render the machine inoperable under Clause 201.
Clauses 204-206 of the Bill provide safeguards for seized things. Inter alia, an authorised person must provide a receipt and an information notice to the owner of an item that is seized under the Act. Additionally the owner of the seized item may access and copy the item, as reasonably practicable. Once the seized item is no longer required, the item must be returned to the owner.
Protection against self-incrimination Does the bill provide appropriate protection against self-incrimination? – Clauses 195(3), 215(2), 216,218(2) & 225
Clause 195(1) requires a person (absent reasonable excuse) to comply with a help requirement made of them. Clause 195(2) provides that it is a reasonable excuse for an individual not to comply with a help requirement if complying might tend to incriminate the person or expose them to a penalty. This protection against self-incrimination is however removed in Clause 195(3) which states that the Clause 195(2) protection does not apply if a document/information that is the subject of the help requirement is required to be kept or held by the individual under this Act.
Issue – Clause 195(3) removes the protection against self-incrimination (an FLP breach) in respect of documents required to be kept by the individual under this Act.
Clause 215(1) requires a person (absent reasonable excuse) to comply with a document production requirement made of them. Clause 215(2) provides that it is not a reasonable excuse for a person to fail to comply with a document production requirement because complying might tend to incriminate the person or expose them to a penalty. The authorised person must advise the person that they need to comply even though so complying might tend to incriminate them/expose them to a penalty and advise them that, under Clause 225, there is a limited immunity against the future use of the information or document given under this requirement (Clause 215(3)).
28 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Fundamental legislative principles
A mirror provision exists in Clause 216 in respect of document certification requirements. In contrast, Clause 218 requires a person (absent reasonable excuse) to comply with an information requirement made of them, however Clause 218(2) states that it is a reasonable excuse for an individual not to give the information if doing so might tend to incriminate them or expose them to a penalty.
Clause 225 gives a limited evidential immunity to individuals who produce documents in compliance with particular requirements. If an individual gives information/documents to an authorised person under Clause 194, 214 (but not 214(1)(a)), or 217, evidence of the information or document, and other evidence directly or indirectly derived from it, is not admissible against the individual in any proceeding to the extent it tends to incriminate the individual/expose them to a penalty in that proceeding (225(2)).
This protection against self-incrimination is removed for a proceeding about the false or misleading information of the information/something in the document, or in which the false or misleading nature of the information or document is relevant evidence (Clause 225(3)).
Request for advice: The committee sought DERM’s advice as to the justification for removal of the protection against self-incrimination in Clauses 195(3), 215(2), 216, 218(2) & 225.
DERM’s advice The documents referred to in Clause 195 (3), are the resource authority and development approval documents, or copies of those documents, that must be held at the development site at all times and presented when requested by an authorised person.
Applying the defence under Clause 195 (2) to these documents creates a perverse compliance outcome. The Bill, on one hand, establishes mandatory requirements to produce the documents to assist compliance and investigations to determine whether the development is operating according to the conditions and grant of the development approval or the resource authority. The most plausible instance where providing these mandatory documents would lead to self- incrimination, is where the documents demonstrate that the development is not operating lawfully. Therefore applying the defence to the documents that must be held on site could potentially undermine the entire enforcement framework of the Act and defeat the achievement of the Act's purposes. Clause 225 provides a limited defence such that incriminating documents and evidence gleaned or obtained on the basis of the presented incriminating documents, will not be admissible in any action against the person who presented the documents.
Therefore, there it is not a reasonable excuse under Clauses 215 and 216 to refuse to produce or certify the document as requested. Additionally, the documents referred to in Clause 225 (3), to which the defence is not available, are the false or misleading documents the compliance action is being taken against or is relevant evidence in a prosecution involving the production of false or misleading documents or information. Establishing inadmissibility provisions in relation to those documents would in and of itself, defeat the action taken against the offence and ultimately would undermine the compliance provisions of the Bill. Clause 218 is consistent with the legislative standards.
Rights and liberties Does the bill adversely affect rights and liberties, or impose obligations, retrospectively? – Clause 90(2)
Part 4 allows the chief executive to decide the impact of a resource activity on land, and whether or not to impose conditions on an environmental authority or a resource authority for that resource activity.
Environment, Agriculture, Resources and Energy Committee 29 Fundamental legislative principles
Clause 90(2) provides that Part 4 applies to an environmental or resource authority application even if, when the application was made, the land was not SCL or potential SCL, but subsequently became SCL or potential SCL before the authority was granted.
Arguably this provision operates retrospectively.
Request for advice: The committee sought DERM’s advice as to the justification for Clause 90(2) which imposes obligations retrospectively.
DERM’s advice Clause 90 (2) does not offend section 4 (3) (g) of the Legislative Standards Act 1992. The provision does not apply retrospectively or adversely affect a person's rights or liberties, as by virtue of the application of Clause 90 (2)(b), no rights or liberties are held by the applicant except the right for their application to be decided in accordance with the Act. The effect of the Clause is to clarify for applicants that, if during the period when their application is being considered the land the subject of the application, becomes potential SCL or confirmed as SCL, the application will be considered and decided accordingly. The status of the affected land can only be altered by the chief executive making an amendment to the trigger map or if the land is confirmed as SCL through the validation process in Chapter 2. Prior to the map amendment taking effect, the chief executive must make a draft of the map available and seek the Governor's approval. The validation processes requires a public notification to ensure all interested persons are aware of the process and can make submissions. Therefore the person who has an application afoot, or makes and application after the public notification process commences, will by virtue of professional due diligence, have constructive, if not actual knowledge, of the potential outcomes and possible affects on their application and development. This framework establishes a balanced position for dealing with competing development and cropping land uses over the same area of land. In effect Clause 90(2) applies in the same fashion as section 282 of the Sustainable Planning Act 2009.
Immunity from proceedings Does the bill confer immunity from proceeding or prosecution without adequate justification? – Clause 268
Clause 268(1) provides that an official does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act. Where subsection (1) prevents a civil liability attaching to an official, the liability attaches instead to the State (Clause 268(2)).
Request for advice: The committee sought DERM’s assurance that the limited immunity from prosecution given to officials under Clause 268 is reasonable. The committee also sought DERM’s assurance that providing that civil liability attaches instead to the State would not unfairly disadvantage aggrieved persons.
DERM’s advice It is reasonable to provide the level of vicarious liability offered by Clause 268, which is afforded to any person in an employer-employee relationship. Clause 268 does not offer an official immunity from prosecution; it offers protection to officials against any civil liability actions that may arise from the official's exercise of their powers and functions under the Act. The same level of immunity is offered to all State government employees in accordance with the Government's Guideline for the grant of indemnities and legal assistance to state employees.
Therefore the department can assure the Committee, that these arrangements would not unfairly disadvantage an aggrieved person. Clause 268 does not affect any action or remedy that would otherwise be available to the aggrieved person. The Clause merely directs that such actions must be made against the State instead of the government official responsible for the act or omission.
30 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Fundamental legislative principles
Aboriginal tradition and Island custom – Section 4(3)(j) Legislative Standards Act 1992 - Does the bill have sufficient regard to Aboriginal tradition and Island custom?
This bill does not appear to make reference as to whether the rights of Aboriginal and Torres Strait Islander people, in respect of land held under native title, will be protected/ preserved, should a determination be made that the relevant land is SCL.
Request for advice: The committee sought DERM’s advice as to whether the rights of Aboriginal and Torres Strait Islander people, in respect of land held under native title, will be protected/ preserved, should a determination be made that the relevant land is SCL.
DERM’s advice A determination that the relevant land is strategic cropping land does not affect the rights of Aboriginal and Torres Strait Islander people. This determination influences which activities may be approved and the suitable conditions to be imposed. The SCL framework is an adjunct to the existing development and resource tenure approval processes. The rights of Aboriginal and Torres Strait Islander people are sufficiently regarded within those frameworks and remain unaffected by the Strategic Cropping Land Bill 2011.
Clear and precise – Section 4(3)(k) Legislative Standards Act 1992 Is the bill unambiguous and drafted in a sufficiently clear and precise way? – Clauses 118 & 281, Schedule 2.
Arguably Clause 118 is ambiguous as to what might constitute a ‘significant community benefit’.
Clause 281 refers to a date of 23 August 2010. Some submissions have stated this is a mistake and that the original policy document/factsheet referred instead to 23 August 2012.
Schedule 2 –definition of tenure – the Queensland Resources Council (sub 43) raises the issue of whether this definition is intended to apply to all tenures or just to production tenures.
Request for advice: The committee sought DERM’s advice as to the meaning of the term ‘significant community benefit’, who the department envisages would make this determination and how it may be clearly defined for the Bill? The committee sought clarification from DERM as to whether the date ‘23 August 2010’ specified in Clause 281 is correct, and whether the definition of tenure provided in Schedule 2 applies to all tenures or just to production tenures.
DERM’s advice Under Clause 116, the Minister or the Coordinator-General (for State significant projects) are required to determine that a proposed development has no alternative site and has a significant community benefit, before deciding that the project is an exceptional circumstances development. Clause 128 provides the criterion to be considered by the required decision-maker when determining whether the development will have a significant community benefit.
The reference to '23 August 2010' in sub-Clauses 281(1) (a) and (c) are correct. The same date reference in sub-Clause 281(1) (b) however is incorrect. The correct date for this sub-provision is '23 August 2012'. This error will be corrected in accordance with the Parliamentary Standing Rules and Orders.
Environment, Agriculture, Resources and Energy Committee 31 Fundamental legislative principles
The definition of 'tenure' in Schedule 2 of the Bill refers to an interest held in, or the holding of land, that does not amount to a freehold interest in the land. Therefore the definition applies to all tenure types except free holding or occupation rights under Land Act permit. A definition of 'production tenure' could not be identified within the Bill or any other Queensland enactment.
Delegation of legislative power Does the bill allow the delegation of legislative power only in appropriate case and to appropriate persons? – Clause 34
Clause 34 allows the chief executive, after considering the required criteria, to amend the trigger map to add or remove potential SCL. The amendment does not take effect until it is approved under a regulation (Clause 34(3)).
Issue – is the addition/removal of potential SCL on the trigger map something suitable to be approved by regulation or should it be contained in primary legislation?
Request for advice: The committee sought DERM’s assurance that addition/removal of potential SCL on the trigger map is something suitable to be approved by regulation rather than contained in primary legislation.
DERM’s advice The powers of the chief executive to amend the trigger map are appropriately delegated in accordance with sections 4(4) (a) and (b) of the Legislative Standards Act 1992. Before a trigger map amendment takes effect, the following steps are required by the Bill: - The chief executive must consider the required criteria in Clause 34 (4); - A copy of the draft trigger map is to be displayed on the Department's website under Clause 39; - The chief executive must seek the Governor in Council's approval to make the map amendments as a regulation (Clause 34 (3)); - Under Part 6 of the Statutory Instruments Act 1992, the regulation must be tabled in the Legislative Assembly. While tabled in the Legislative Assembly, the regulation may be the subject of a disallowance motion passed by the Parliament. Therefore each of these steps ensure that sufficient regard is given to the institution of Parliament in accordance with sub-sections 4 (4) and (5) of the Legislative Standards Act 1992.
Independence of the Science and Technical Implementation Committee
The committee noted that Clause 227 provides that the Minister may establish a Science and Technical Implementation Committee. The members of this committee are appointed by the Minister under Clause 228(2), and their remuneration is set by the Minister under Clause 228(4(b). Clause 229(a) states that the committee's function is to provide independent scientific and technical advice.
Request for advice: The committee sought DERM’s assurance that the Science and Technical Implementation Committee will be able to function according to the provisions of the Bill and provide independent advice as per Clause 229(a), given that the head and other members of the committee will be appointed and have their remuneration determined by the Minister.
DERM’s advice A Science and Technical Implementation Committee (STIC) may be established by the Minister under Clause 227 to provide independent scientific and technical advice on the matters identified in Clause 29. Fees may be paid to members
32 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Fundamental legislative principles
the STIC in accordance with Clause 228 (4) and the Remuneration of Part-time Chairs and Members of Government Boards, Committees and Statutory Authorities procedure (the Remuneration procedures) maintained by the Department of Justice and Attorney-General. The Remuneration procedures state that the remuneration for a committee is to be determined on the basis of its major functions and influence, and the impact of its decisions and activities have on the government, industry and the community. There are eight standardised remuneration categories in the procedures providing consistency, clarity and equity in the payment of daily fees and annual allowances for part-time chairs and members of government committees. The proposed remuneration for this Committee is currently being reviewed and advice will be provided to the Government shortly at what level the Committee members will be remunerated. The STIC are not conferred with any powers or functions under the Act, other than to provide advice to the Minister in accordance with Clause 229 of the Bill. In appointing members, the Minister must only appoint persons who the Minister is satisfied has expertise or experience in soil attributes and processes or another area of knowledge prescribed under a regulation. Other areas of knowledge will be subject to the scrutiny of the Legislative Assembly in accordance with Part 6 of the Statutory Instruments Act 1992 and satisfying the requirements of the section 4 of the Legislative Standards Act 1992.
Explanatory Notes to the Bill Part 4 of the Legislative Standards Act relates to explanatory notes. Subsection 22(1) states that when introducing a bill in the Legislative Assembly, a member must circulate to members an explanatory note for the bill. Section 23 requires an explanatory note for a bill to be in clear and precise language and to include the bill’s short title and a brief statement providing certain information. Explanatory notes were tabled with the introduction of the bill. These notes, while substantially in compliance with the information required by s.23, do not discuss all potential FLP breaches.
Request for advice: The committee asked DERM to explain why the explanatory notes do not address all potential FLP issues.
DERM’s advice The department was mindful of the fundamental legislative principles (FLPs) stated in section 4 of the Legislative Standards Act 1992. Due to the opposing interests affected by the Bill and the complex nature of the legislative arrangements, the during the drafting of the Bill, the department and Office of Parliamentary Council (OQPC) rigorously ensured that sufficient regard was given to the rights and liberties of persons affected by the proposed legislations and that the same regard was given to the institution of Parliament when establishing powers and procedures under the Bill. During the development of the Bill, OQPC were consulted, in accordance with section 7 of the Legislative Standards Act 1992, on the potential for provisions of the Bill to breach the FLPs. The Explanatory Notes addressed the FLPs that were identified as potentially being breached by the Bill.
Environment, Agriculture, Resources and Energy Committee 33 Fundamental legislative principles
34 Environment, Agriculture, Resources and Energy Committee Appendices Strategic Cropping Land Bill 2011
Appendices
Appendix A – List of Submissions
Sub # Name
1 Charles Nason
2 Householders’ Options to Protect the Environment Inc.
3 Robert & Lynette Petersen
4 Fitzroy Basin Association
5 Kingaroy Concerned Citizens Group
6 Central Queensland’s Golden Triangle Community
7 GE Energy
8 Arcturus Downs Limited
9 Cassowary Coast Regional Council
10 Rebecca McNicholl
11 Mike & Jackie Wells
12 Sunshine Coast Council
13 Adam Sullivan
14 Paul Murphy
15 Bandanna Energy Limited
16 Friends of Felton
17 Jimbour Action Group
18 QER Pty Ltd.
19 Megan Baker
20 Cotton Australia
21 Xstrata Coal
22 Ian & Janet Cox
23 Property Rights Australia
24 Cement Concrete & Aggregates Australia
25 P. Ross Ingram
26 Australian Society of Soil Science Inc.
27 Megan Lawler, Moreton Bay Regional Council
Environment, Agriculture, Resources and Energy Committee 35 Strategic Cropping Land Bill 2011 Appendices
28 P&E Law
29 Sally Sullivan
30 Haystack Road Coal Committee
31 Marilyn Bidstrup
32 Bendee Farming Pty Ltd.
33 Ipswich City Council
34 Far North Queensland Regional Organisation of Councils
35 Sharon & Mike Wagner
36 Growcom
37 Queensland Farmers’ Federation
38 Trevor & Di Berthelsen and Family
39 Canegrowers
40 Lindsay & Avriel Tyson
41 Queensland Law Society
42 Queensland Resources Council
43 Queensland Murray-Darling Committee Inc.
44 AgForce Queensland Industrial Union of Employers
45 Peter Boulot
46 Doug & Tahnee Tyson
47 Ann Hobson
48 FutureFood Queensland
49 Lee G. McNicholl
50 Local Government Association of Queensland Limited
51 Property Council of Australia
52 Environmental Defenders Office
53 Southern Downs Regional Council
54 Origin Energy Limited
55 Macarthur Coal Limited
36 Environment, Agriculture, Resources and Energy Committee Legislative Standards Act 1992 —The August 2010 framework was presented at nine community forums on coal —The Government hosted community information sessions on the discussion paper. —The Government announced that legislation would be introduced into Parliament in late —Guidelines for applying the proposed criteria at a property level were released, as well as —The Government released Protecting Queensland's strategic cropping land: A policy —The Government announced there would be a Science and Technical Implementation —The Government released a discussion paper on conserving and managing food-producing —A Stakeholder Advisory Committee was formed (including representatives from the agriculture, —A draft State Planning Policy was released for public consultation. —The Government released the proposed criteria for identifying SCL, a technical assessment —The Government announced implementation of the SCL policy through Protection Areas and a 27 September 2011 October 2011, and released further informationThe on Bill mitigation is arrangements. consistent with previouslyThe announced Bill government is policy. generally consistentand with this is fundamental further legislative addressed principles inGrant under the of the explanatory mining notes tenure for is the dealt Bill. with under the resources Acts and is outside the purposes of the Bill. the SCL trigger map. Regulated regrowth underdeveloped the for cropping. Vegetation For thistrigger Management reason, map. areas Act of in regulatedThe regrowth Bill certain vegetation provides are for circumstances not futureaccount excluded can updates any from to changes be the be to SCL made the cleared areas toThe mapped the consultation and as SCL undertaken remnant trigger in regional map developing ecosystems. on (clause the 34). SCL the policy Strategic Such and updatesCommittee legislation Cropping will and is submitted Land take outlined to into in Bill the the CommitteeThis 2011 Consultation by consultation Briefing DERM has prepared on included for 4 the November following: February the 2011. 2010 Environment, Agriculture,land Resource for public and consultation. Energy February 2010 resource and urban development sectors,meet local regularly government since and its natural formation. resourceFebruary–March management 2010 groups) and has 23 August 2010 framework (August 2010 framework) for publicAugust–September consultation. 2011 seam gas in south-west Queensland. 14 April 2011 report and independent expert review report31 of May the 2011 proposed criteria. Management Area, released thefor transitional public arrangements, consultation. and In released addition,5 a the August 2011 Government Regulatory announced Assessment the Statement requirement24 for mitigation August measures. 2011 Committee. 8 September 2011 an online mapping tool. DERM comments Areas mapped as remnant vegetation areIn excluded 2006 from the the Queensland SCL government triggera phased map. result, out these broadscale areas clearing are of unavailable remnant to vegetation be across developed the for State. cropping, As and for this reason have not been included in currently own. General comment – Mining should not occur under properties that a mining company does not May I suggest its stakeholder consultation was poor Section/Initiative/comment Comment/key point General comment - Conflict with thepotential SCL Vegetation Management Act which alienates much General comment - Sub 11 Mike & Jackie Wells Sub 1 Charles Nason Sub 1 Charles Nason Submitter Cl. pedxBAppendix – of Summary Submissions
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8 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Sub 12 Draft SPP- On 5 August 2011, the Government released a draft State Planning Policy for public consultation. Sunshine No comments – past submissions have covered concerns and have The Government is currently considering submissions received and a final SPP will be prepared as required by Coast Council attached submission on the Draft SPP. clause 80 of the Bill. Sub 9 General Comment- The February 2010 discussion paper released by the Government for public consultation outlined a proposed Cassowary Bill adds additional complex regulation and cost—amendments should planning framework to conserve and manage the strategic cropping land. Coast simply be made to SPA (amend SP Reg to make development on The framework proposed a state wide approach to ensure the State’s strategic cropping land resources would Regional potential SCL code assessable), EP Act and resources legislation be given the same consideration against all types of development—whether developments assessed under the Council Sustainable Planning Act 2009 or resource developments (which are not assessed through the Sustainable Planning Act 2009). The feedback received on the discussion paper informed the August 2010 policy framework released by the Government. The August 2010 policy framework proposed that the following legislative and planning instruments would be developed: A new Act specifically for SCL A new State planning policy under the Sustainable Planning Act 2009 for SCL to address SCL requirements for development assessable under Sustainable Planning Act 2009;, and Amendments to existing resources legislation to recognise the requirements of the new SCL Act for resources developments. The Bill fits into existing processes established under the Sustainable Planning Act 2009 and resources legislation. It specifically amends the Sustainable Planning Regulation 2009 to provide for assessment triggers and a referral agency jurisdiction. Clause 80 of the Bill also requires that a State Planning Policy for SCL must be made and that the SPP may include applicable codes. On May 31 2011, the Government released a Regulatory Assessment Statement for public consultation. The Regulatory Assessment Statement provided an assessment of the costs to business, landholders and government of implementing the SCL policy. This included an assessment of cost recovery options and potential fees that might be charged. The Government is currently considering submissions received and a regulation will be prepared under clause 271 of the Bill to identifying the fees that will be payable under the Act. Sub 16 Buffer zones - Clause 80 provides that there must be a State planning policy (SPP) under the Planning Act about SCL. Friends of Buffer zones should be established around areas of SCL in proportion to A draft SPP was released on 5 August 2011 for public consultation. Section 3.1 and 3.2 of the draft SPP Felton the likely impact of the proposed development. Buffers for mining provide for buffers to be established in regional plans and local government planning schemes by requiring a mentioned. buffer of at least one kilometre between SCL and areas zoned for urban or other sensitive land uses. On 16 August 2011, as an interim measure under the exploration and urban living policy, Government declared restricted areas under the Mineral Resources Act 1989 to establish a two kilometre buffer zone around south east Queensland and around other regional cities. While this interim measure is in place, the State Government will not accept applications for any new mineral and coal exploration permit applications within these areas. Sub 17 Consultation (draft SPP)- On 5 August 2011, the Government released a draft State Planning Policy for public consultation. Jimbour Resubmitted submission on draft SPP. The Government is currently considering submissions received and a final SPP will be prepared as required by Action Group clause 80 of the Bill. Sub 17 Consultation- The consultation undertaken in developing the SCL policy and legislation is outlined in the Consultation Briefing Jimbour Due to the short time limit from notification to submission end date for this on the Strategic Cropping Land Bill 2011 prepared for the Environment, Agriculture, Resource and Energy Action Group inquiry, JAG has not been able to review the tabled legislation. It is Committee and submitted to the Committee by DERM on 4 November 2011. disappointing after such effort on our part that a four day turnaround is all This consultation has included the following: we get to review this very important bill, especially in the middle of a very February 2010—The Government released a discussion paper on conserving and managing food-producing 38 Environment, Agriculture, Resources and Energy Committee —The August 2010 framework was presented at nine community forums on coal —The August 2010 framework was presented at nine community forums on coal —The Government hosted community information sessions on the discussion paper. —The Government hosted community information sessions on the discussion paper. —The Government announced that legislation would be introduced into Parliament in late —Guidelines for applying the proposed criteria at a property level were released, as well as —The Government released Protecting Queensland's strategic cropping land: A policy —The Government released Protecting Queensland's strategic cropping land: A policy —The Government announced there would be a Science and Technical Implementation —The Government released a discussion paper on conserving and managing food-producing —A Stakeholder Advisory Committee was formed (including representatives from the agriculture, —A Stakeholder Advisory Committee was formed (including representatives from the agriculture, —A draft State Planning Policy was released for public consultation. —The Government released the proposed criteria for identifying SCL, a technical assessment —The Government released the proposed criteria for identifying SCL, a technical assessment —The Government announced implementation of the SCL policy through Protection Areas and a —The Government announced implementation of the SCL policy through Protection Areas and a February–March 2010 23 August 2010 framework (August 2010 framework) for publicAugust–September consultation. 2011 seam gas in south-west Queensland. 14 April 2011 report and independent expert review report31 of May the 2011 proposed criteria. Management Area, released the transitional arrangements and released a Regulatory Assessment Statement 23 August 2010 framework (August 2010 framework) for publicAugust–September consultation. 2011 seam gas in south-west Queensland. 14 April 2011 report and independent expert review report31 of May the 2011 proposed criteria. Management Area, released thefor transitional public arrangements, consultation. In and addition, released the5 a August Government announced 2011 Regulatory the Assessment requirement Statement for24 mitigation. August 2011 Committee. 8 September 2011 an online mapping tool. 27 September 2011 October 2011, and released further informationThe on Bill mitigation is arrangements. consistent with previouslyThe announced Government government policy. isprepared currently as considering required by submissionsMay clause 2011 received 80 and of released on further thedoes information the Bill. not on form Government 27 draft part September announced of SPP 2011. initial the MitigationThe requirements and SPP. is consultation for a undertaken a requirement mitigation in under final on developing theon the 31 Bill SPP SCL the and policy will Strategic andCommittee legislation be Cropping and is Land submitted outlined to in Bill the thefollowing: Committee 2011 Consultation by Briefing prepared DERM on for 4February the November 2010 2011. Environment, This Agriculture,land consultation Resource for has public included and consultation. the Energy February 2010 resource and urban development sectors,meet local regularly government since and its natural formation. resource management groups) and has DERM comments land for public consultation. February 2010 resource and urban development sectors,meet local regularly government since and its natural formation. resourceFebruary–March management 2010 groups) and has introduction into Parliament onhad the just 8 25th business October days to and develop we a have submission to therefore this inquiry. Cotton Australia wishes toshort express period its of disappointmentstakeholder to in time the provide that submission extremely long-term impacts to the mining and this Queensland Inquiry,other extractive particularly Government industries have given on has the ourConsultation soil - allowed resources. (Sub 20, p2) FNQROC is extremely concerned aboutBill the has timeframes been in introduced. which Twoconsidered the weeks new a (25 October completely –comprehensive response 4 inadequate to November this 2011 time complicated is legislation. and frame significant piece in ofConsultation new which - toQFF form is a constrainedbecause: in providing comprehensive- comment The text on of this the Bill, Bill was only provided to us immediately following its Consultation - Section/Initiative/comment Comment/key point busy harvesting & planting season. Not only in thethe length of original turnaround, butrequested also submission the were lack was accepted. ofsubmission feedback Secondly, submitted period since of it toweren’t further came able information to know comment to regarding about. our whether mitigation which notice changes we after the Sub 37 Queensland Farmers’ Federation Sub 34 FarQueensland Regional North Organisation of Councils Sub 20 Cotton Australia Submitter Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Sub 39 Consultation - for public consultation. In addition, the Government announced the requirement for mitigation measures. Canegrowers CANEGROWERS is supportive of the intent of the SCL Bill; however it is 5 August 2011—A draft State Planning Policy was released for public consultation. unrealistic to provide a comprehensive submission on the SCL Bill in 8 24 August 2011—The Government announced there would be a Science and Technical Implementation working days. Committee established. Sub 41 Consultation - 8 September 2011—Guidelines for applying the proposed criteria at a property level were released, as well as Queensland This is a complex and lengthy Bill (195 pages), establishing a novel an online mapping tool. Law Society framework, and in many ways departing from various previous policy 27 September 2011—The Government announced that legislation would be introduced into Parliament in late announcements and fact sheets. …It is not clear what justifies rushing October 2011, and released further information on mitigation arrangements. through this legislation with errors and inconsistencies that could have The Bill is consistent with previously announced government policy. been resolved with consultation on the Bill’s text prior to introduction. The Bill is generally consistent with fundamental legislative principles under the Legislative Standards Act 1992 QLS would also like to take the opportunity to raise a more general and this is further addressed in the explanatory notes for the Bill. concern about the hazards or rushing legislation for introduction to Parliament, which recently seems to have become the normal approach rather than being an exception to the rule. (Sub 41, p.1) Sub 42 Consultation - Queensland The timeframe to provide the submission to the committee is also very Resources short, given the length, complexity and significance of the legislation. Council There does not appear to be any sensible justification for rushing through a Bill which is riddled with errors and inconsistencies. This is not a bill to deal with a natural disaster, terrorism or some kind of similar emergency. Given the undue haste, QRC cannot be sure that we have been able to identify every error in the Bill. Sub 42 Consultation - Queensland …we are concerned that, after all this work, the Bill itself has been rushed Resources to the extent that there are a multitude of errors, it does not take into Council account important developments in soil science and there are numerous issues affecting rights and liberties under the Legislative Standards Act 1992, without any sound justification which could in any way be linked to the State’s interest in the best cropping land. (Sub 42, p.1) This rush has generated numerous major changes in policy reflected in the Bill, which are inconsistent with the Government’s previous announcements, the policy reasoning explained at the discussion paper stage and the information which has been published in factsheets on the DERM website. (Sub 42, p.2) Sub 44 Consultation - Agforce Agforce is at the timeframe in which this consultation process has been undertaken. One week to disseminate nearly three hundred pages of legislation and explanatory notes is certainly no a long enough timeframe to assess appropriately, or provide this committee with a full and frank submission. (Sub 44, p.2) Sub 50 Consultation - Property While the Property Council maintains its support for the intent of the Council of policy, the fast-tracked timeframes for its implementation have not Australia allowed for adequate consideration of the issues highlighted during public 40 Environment, Agriculture, Resources and Energy Committee . . The protection Environmental Protection Act 1994 Petroleum and Gas (Production and Safety) Act 2004 and Petroleum Act 1923 —The August 2010 framework was presented at nine community forums on coal —The Government hosted community information sessions on the discussion paper. —The Government released Protecting Queensland's strategic cropping land: A policy —The Government released a discussion paper on conserving and managing food-producing —A Stakeholder Advisory Committee was formed (including representatives from the agriculture, —The Government released the proposed criteria for identifying SCL, a technical assessment —The Government announced implementation of the SCL policy through Protection Areas and a 23 August 2010 framework (August 2010 framework) for publicAugust–September consultation. 2011 seam gas in south-west Queensland. 14 April 2011 report and independent expert review report31 of May the 2011 proposed criteria. Management Area, released thefor transitional public arrangements, consultation. In and addition, released the a Government announced Regulatory mitigation Assessment requirements. Statement strategic cropping land— is a finitewas resource considered in that setting must be the conserved boundariesclimatic and of variations managed the across for five the the criteria State. longer zonesdependence term. to on However, the issues reflect Bill Climate not the does different related not cropping toexample, include systems the the irrigation sale and quality water of of availability the water due soil rightsA to affecting resource technical its and which assessment the would involving affect potential detailed for the checkingland land’s perverse zones—Granite of outcomes status Belt, the as (for criteria Wet strategic for tropics, cropping 128 Coastalzones—and land). sites Queensland, an independent Eastern across the Darling expert five Downs review strategic and wereissue Western cropping undertaken of to Cropping irrigation ensure was the considered as criteriaassessment are report)- part scientifically of “The capacity the robust. technical The for a assessmentaccess parcel and to of concluded reliable land (refer water to sources, to be page theland irrigated 12 surface locality is of (e.g. of dependent levelling). the the on land, many This thecropping issues, configuration is requires including irrigation, further of complicated the which by land depends water on andprevailing capacity being its weather a conditions locality to tradeable alter (for (i.e. the commodity. wet example, Further, higher seasons)For rainfall not and these all reasons, areas the in type the the availability of Wet cropframework (or Tropics), or being otherwise) criteria.” of grown irrigation (e.g. dryland Clause water grains 17 foran cropping). cropping of authority the is issued Bill not under considered the provides within thatTherefore, the a CSG SCL development resource activity will includes be activitiescontamination assessable of carried under soils out the under Act. is covered under Environmentalof the harm landholders’ jurisdiction caused groundwater through supplies of the is coveredThe under consultation the undertaken Water in Act developing 2000. on the SCL the policy Strategic andCommittee legislation Cropping and is Land submitted outlined to in Bill the thefollowing: 2011 Committee Consultation by Briefing prepared DERM for onFebruary 4 the November 2010 Environment, 2011. This Agriculture, consultationland Resource for has public included and consultation. the Energy February 2010 resource and urban development sectors,meet local regularly government since and its natural formation. resourceFebruary–March management 2010 groups) and has DERM comments Clause 3 of the Bill providesmanage the that the impacts of purposes of development thegenerations. on Bill that land; are to and protect preserve land theThis that productive is is capacity consistent highly with of suitable the that for Government’s land cropping; for policy future announced in February 2010 that the best cropping land— Cropping Land Bill 2011,disruption particularly to with many the people Qantaswas including also grounding not the causing ideal preparation that thediscussion of Mitigation paper this Arrangements for document. were not SCL It Many added SPP to small until the to days medium beforehave voluntary had submissions their community were submission groups in due. would the final have stages. already permanently alienate the soil (although Cottonargue Australia that would this strongly is yet toapply), be but there proven, and remains the significant precautionary concerndamage principle the that should CSG Condamine extraction Alluvium. will (Sub 20, p3) Consultation - PRA believes that too little time was allowed to respond to the Strategic Section/Initiative/comment Comment/key point consultation. Part 2 “Criteria” - Cotton Australia strongly believes thattoo the narrow Strategic in Cropping its Land Bill focus, and is has will been designed fail to to protect. preserve somefocuses of Of almost the particular entirely land on concern, that soil is it that characteristicsof the factors and criterion not which on determine the a whole strategicimportant, range is value only of land. one factor Soil and while water an resources. assessment For example, must include Cotton climate Australiaprovide and believes no the protection Bill from Coal will Seamfloodplains Gas that (CSG) overlay production the on Condamine the Alluviumregion. in CSG extractors the Cecil may be Plains able to argue that they will not Sub 23 Property Rights Australia Sub 20 Cotton Australia Submitter Cl.
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2 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point 5 August 2011—A draft State Planning Policy was released for public consultation. 24 August 2011—The Government announced there would be a Science and Technical Implementation Committee. 8 September 2011—Guidelines for applying the proposed criteria at a property level were released, as well as an online mapping tool. 27 September 2011—The Government announced that legislation would be introduced into Parliament in late October 2011, and released further information on mitigation arrangements. The Bill is consistent with previously announced government policy. The Government is currently considering submissions received on the draft SPP and a final SPP will be prepared as required by clause 80 of the Bill. Government announced initial requirements for mitigation on 31 May 2011 and released further information on 27 September 2011. Mitigation is a requirement under the Bill and does not form part of the SPP. Sub 23 Consultation on the draft SPP - The Government is currently considering submissions received on the draft SPP and a final SPP will be Property SPP restrictions on farm diversification prepared as required by clause 80 of the Bill. Rights Resubmitted comments on draft SPP. Australia Sub 25 Moratorium on CSG - Clause 17 of the Bill provides that a resource activity includes activities carried out under an authority issued P.R. Ingram There needs to be ‘breathing space’ or a moratorium placed on CSG under the Petroleum Act 1923 and Petroleum and Gas (Production and Safety) Act 2004. Therefore, CSG developing on SCL. development will be assessable under the Act. This is consistent with Government’s policy announcements. Sub 25 General Comment - The resources Acts deal with the granting of tenure and compensation agreements involving landholders. This P.R. Ingram Any proposed mining operation under or on SCL, should be forced to buy issue is outside the purpose of the Bill. the land holders entire business in a timely way. Sub 26 General comment - The Bill does not allow offsetting of SCL. SCL is regarded as a finite resource that cannot be recreated. ASSSI What can be reasonably avoided so that the principle will be transparent The Bill does not provide for compensation for permanent impacts to SCL. The Bill is consistent with the and consistently applied. It is surprising that off-setting is not required in Government’s policy announcements on 31 May 2011 and 27 September 2011 that mitigation is to be provided relevant circumstances rather than one of “compensation” as implied. for permanently impacted SCL. The policy objective of mitigation is to address the loss of productivity of cropping to the State that may occur where SCL or potential SCL is permanently impacted. Sub 26 General Comment - The Sustainable Planning Act 2009 is not being amended to provide for resources acts. The August 2010 policy ASSSI That the relevant mineral resource statutes will be appropriately amended framework proposed that the following legislative and planning instruments would be developed: to ensure that permits to explore are only made after a planning A new Act specifically for SCL assessment has been made. This could be achieved by removing the A new State planning policy under the Sustainable Planning Act 2009 for SCL to address SCL exemption of mining development from regulation under the regional requirements for development assessable under Sustainable Planning Act 2009;, and planning provisions of the Sustainable Planning Act 2009. Amendments to existing resources legislation to recognise the requirements of the new SCL Act for It is not clear that the Sustainable Planning Act 2009 is being amended to resources developments. provide for resource acts coming under IDAS.
Sub 26 Draft SPP and SPP1/92 - The August 2010 SCL policy framework released by the Government provided that SPP1/92 would continue. ASSSI That there is justification for continuing with two SPPs to protect the most Clause 3 of the Bill provides that the purpose of the Bill is to protect land that is highly suitable for cropping. productive cropping land from alienation (the SCL SPP and SPP 1/92). It State Planning Policy 1/92 Development and Conservation of Agricultural Land (SPP1/92) continues to apply to is not clear how productive agricultural lands that are not cropping lands a broader range of agricultural land. that are currently being recognised through SPP1/92 are to be handled.
42 Environment, Agriculture, Resources and Energy Committee provides that words are to be read in the context provided by the , provides guidance on how to appropriately interpret this section. Acts Interpretation Act 1954 Acts Interpretation Act 1954 currently considering submissions received and a final SPP will be preparedNeither as required the by draft clause 80planning SPP of scheme. the or Bill. the Bill require cropping history to be considered when preparingTemporary or development is amending defined a development in and the resources Bill development in captured under clause the 14 SCL (4). Bill. These definitions apply to both SPA assessable Section 32A of the Act. Clause 32 of the Billclause has 32(1)(b) the describes effect a ofcorrects minor defining amendment or the as term one more minorreplacement that in accurately does cadastral relation not to map. shows, change mappingunnecessarily. what amendments, the is for Providing example or boundary, an whatClause including, is additional 37(2) not for definition SCL (a) andmanagement example, would area). it and limit because (b) the of relate application the to of making zonal the of provision amendments a (which can coverThe both protection Bill areas integratesEnvironmental Protection and/or with Act a 1994 thethe and Sustainable resource existing Planning acts. assessment ActSustainable Regional 2009. Planning processes planning Act in 2009 under Clauseunder Queensland about 80 the the is SCL. states achieved Sustainable The that Sustainable through resources State Planning there developments. planning Planning Act must policy However, be Act 2009. will theClause a Bill These address 291 2009, is State of statutory regional consistent the planning with regional Bill planning Government’sexcludes policy planning provides announcements for processes existing on under the the urban do concurrence the SCL jurisdiction footprints policy. 2011, not for under SCL. the apply a Item Government to regional 4currently plan released mining excludes considering urban or submissions a and areas received State and and draft planning item a 6 final State regulatory SPP provision. Planning will be Policy prepared On as for 5 required by August public clause 80 consultation. of the Bill. TheClause Government 291 of is the Billexcludes provides for existing the urban concurrence jurisdiction footprints2011, for under SCL. the a Item Government regional 4 plan released excludes urban or a areas State and draft planning item 6 State regulatory provision. Planning Policy On for 5 August public consultation. The Government is DERM comments The Bill applies to notthe only Bill. SPA developments butSection also 38 developments of under the theEach resources Acts Act in should clause be 17separate enactments. of read in its own context and the timeframes determined by the relevant provision in the Clarification as to why ‘temporary development’of uses the identified draft in Annex SPP 2 are not consistent with the definition of ‘temporary use’ for thisdevelopment include and reducing implicationsinvestment the for decisions forward current willincluded planning in identified the have urban for footprint. capacity been growthDraft SPP made - areas, for on urban Section 3.2(v) basis of the draft of SPPis – land not land within zoned being 1kmscientific of for land identified basis sensitive as SCL land thatprovision for uses it a - buffer is will is notDraft clear. SPP effectively unreasonable - and address noDoes land stated the useassessment conflict. SPP or demonstrate The require cropping historyor for local the amending purpose government of aunachievable. preparing to planning scheme. carryDraft SPP If - out so, on this ground is onerous, costly and Ministerial decision on whether to amend The "required criteria" forand "zonal (b) is amendments" expressed useding...". in in These terms section are of 37(2)(a) "protection "...likelyshould area" to be issues replaced be with rather highly criteria than suitable statementsGeneral "zone" to for Comment correspond issues - cropp- to and the lead-in. Legislation needsplanning to in consultation provide with NRM groups, for community and government. initial and post mining landscape Draft SPP - Section 3.1(iii) of the draftland SPP identified - as urban SCL footprint - boundary 1km is away unreasonable from with no scientific basis. Reasons Section/Initiative/comment Comment/key point General Comment - Throughout the Bill, timingdays". is Given the expressed obvious in interactionthis "days" between the rather proposed difference than Act "business unnecessary and in potential SPA, for misinterpretation. the way thatWhen a map time amendment is minor isThe term "minor expressed error"32 as represents needs used to in be an regard defined. The to map following amendments in words"Notwithstanding section should subsection be (1)," toprovisions used within remove that as section. the a potential for lead-in conflicting to section 32 (3): Council Sub 33 IpswichCouncil City Sub 33 IpswichCouncil City Sub 33 Ipswich City Sub 33 IpswichCouncil City Council Sub 32 Bendee FarmingLtd Pty Regional Council SubMoreton Bay Regional 27 Moreton Bay Regional Council SubMoreton Bay 27 Submitter Sub 27 Cl.
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4 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point under the QPP. Sub 34 Possible duplication of other assessment system - The February 2010 discussion paper released by the Government for public consultation outlined a proposed Far North FNQROC are concerned the Bill introduces an almost parallel planning framework to conserve and manage the strategic cropping land. The framework proposed a state wide Queensland assessment system to what is already provided under the Sustainable approach to ensure the State’s strategic cropping land resources would be given the same consideration against Regional Planning Act. It is unclear why this matter could not be dealt with through all types of development—whether developments assessed under the Sustainable Planning Act 2009 or Organisation amendments to the Sustainable Planning Act and other relevant resource developments (which are not assessed through the Sustainable Planning Act 2009). The feedback of Councils legislation. received on the discussion paper informed the August 2010 policy framework released by the Government. The August 2010 policy framework proposed that the following legislative and planning instruments would be developed: A new Act specifically for SCL A new State planning policy under the Sustainable Planning Act 2009 for SCL to address SCL requirements for development assessable under the Sustainable Planning Act 2009; and Amendments to existing resources legislation to recognise the requirements of the new SCL Act for resources developments. The Bill fits into existing processes established under the Sustainable Planning Act 2009 and resources legislation. It specifically amends the Sustainable Planning Regulation 2009 to provide for assessment triggers and a referral agency jurisdiction. Clause 80 of the Bill also requires that a State Planning Policy for SCL must be made. Sub 36 Mitigation - Mitigation and restoration are two separate concepts and are designed to achieve separate principles under the Growcom Reiterates concerns raised by QFF about mitigation. Restoration of Bill. cropping to its original productive state is not something that has ever The Bill deals with matters relating to restoration in clause 14 and in clauses 98 and 99. Restoration under the been successfully undertaken, therefore we question the whole concept Bill relates to whether a development has a permanent or temporary impact on SCL. of mitigation as it is defined in this Bill. The proposed mitigation fund to be Clause 14 (1)(b) of the Bill provides that a development will be regarded as having a permanent impact on SCL administered by the Government is unlikely to have any real effect, since where the land cannot be restored to its pre-development condition. Where a development is determined under once good quality agriculture land is gone, it cannot be replicated. ..the clause 98 to have a temporary impact on SCL (that is, the land can be restored to its pre-development administration of the fund and its ability to mitigate damaged land is condition), conditions can be imposed on the development to require the SCL to be restored. highly questionable. Clause 99 allows the chief executive to require a financial assurance from the development proponent and in deciding the amount of the financial assurance, can consider the cost of restoring the land. Chapter 5 of the Bill deals with mitigation. Clause 11 (5) clarifies that mitigation is required where SCL is permanently impacted. In management areas, SCL may be permanently impacted and the Bill requires mitigation for the loss of the permanently impacted land’s productivity capacity as cropping land. Mitigation measures that may be permitted under Chapter 5 of the Bill do not necessarily have to be undertaken on the land that is permanently impacted. Provided the measures meet the mitigation criteria provided for in clause 135. Sub 37 Difficult to judge the legislation without seeing the regs - Clause 2 of the Bill provides that the Act commences on the date of assent or 30 January 2012, whichever is the Queensland It is difficult to fully appreciate how the purposes of the Bill will be later. Farmers’ implemented until the drafting of the regulations, of which there are many, The necessary regulations will be prepared to coincide with commencement of the Act. Federation are completed sometime over the coming months. Sub 39 Difficult to judge the legislation without seeing the regs - Canegrowers It is difficult to conclude how the SCL Bill will be implemented until all regulations are drafted which we believe is occurring over the coming months. Will there be further opportunity to comment on the regulations? CANEGROWERS request comprehensive and detailed consultation on 44 Environment, Agriculture, Resources and Energy Committee is a copy of the Department’s response provided on 20 May 2011 to QRC. The August 2010 policyapply framework to released by all theresources new legislation Government and would- provided undecided that resources the new development SCL applications. legislation would It also provided that amendments to The Government is currently271 considering of submissions the received Bill and to identifying aOn the regulation 31 fees will that May will be 2011, beand prepared payable the a under under management Government the clause area. Act. announced the implementation of theThe SCL Bill is policy consistent through with protection the Government’s areas announced policy. Clause 14 of the Bill(3)(a) allows provides for for a cumulative regulation impactsimpact. to of prescribe development level to or density beOn for considered. a 31 temporary May Specifically, activity 2011, clause thatpetroleum 14 is the taken Government resource to announced be a developmentannouncement transitional permanent provided arrangements projects for that proposed those thatobtained coal, final projects met environmental mineral, eligible approvals gas certainstrategic for would and cropping still transitional land milestones be and arrangements required meetthe in but to all Bill which other avoid, is the legislative consistent minimise had with requirements and the approvals notAttached necessary mitigate 31 for already May their process. the 2011 impacts development. announcement. on Chapter 9 of The Clause 2 of the Billlater. provides that the Act commencesThe on necessary the regulations date will of be assent prepared or to 30 coincide January with 2012, commencement whichever of isThe the the Department Act. of Environment andSCL Resource policy since Management mid-2010. have been responsible for the development of the DERM comments On 31 May 2011,Regulatory the Government Assessment released a Statementgovernment Regulatory of implementing Assessment provided the Statement SCL an forfees policy. that This public might assessment included consultation. be an charged. assessment of of The cost the recovery options and costs potential to business, landholders and …QRC is concernedestablished the operations Bill as will opposed have to a future greater development) impact than on was existing, Timing of the regulations - The date of assent istime set for for 30 Januaryelements the 2012, to underpin which development the provides introduction almost ofHistory of no the of Act. the Bill key - …the regulations development of andissue. this other policy Not has necessary onlypresented been a has in complex the lamentableresponsibility and issue contentious for emotive been the terms,development constantly policy but of in has alsoresponsibility the the been of the three in media, policy, different administrative As a often departments strategic and you state four cropping ofDepartments would different Ministers. land flux. to expect During hasdevelopment maintain these of the this the been changes policy. (Sub 42, continuityInconsistent have the p.2) with previous of posed policy announcements - officials a to challenge work for on the not. CANEGROWERS estimate that(CPA) most will if be not on land all designatedLegislation cane as production doesn’t Management area area. appearresource to development assess cumulative impacts of mines and Transitional arrangements - Do not support Supplementary Submission - QRC in their originalreview submission of to the zonal the criteria Committee commissioned attached by QRC. a copy of a Section/Initiative/comment Comment/key point the drafting of these regulations asCosts they to occur. implement unknown - We have no tangible knowledgeframework. about the costs There of implementing isvalidation the SCL and no there marketstructures have for administration been knowledge of decisions no of within decisions the Bill. costs announced on for final on cost ground Inconsistent with previous policy announcements - The decision of Government toarea move to and a two Management tieredProtection system area of area delivers Protection policy (by intent whereas exclusion) a Management is area does questionable, as the Sub 42 Queensland Resources Sub 42 Queensland Resources Council Sub 42 Queensland resources Council Sub 42 Queensland Resources Council Avriel Tyson Sub 40 LindsayAvriel Tyson & Sub 39 Canegrowers Sub 40 Lindsay & Sub 39 Canegrowers Submitter Cl.
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6 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Council previously disclosed in policy announcements or published factsheets on “require assessment of the impact on SCL and will condition tenure accordingly. Further conditions for the DERM website. (Sub 42, p.2) restoration and other environmental matters will continue to be addressed under the Environmental Protection Act 1994”.
Clause 22 (1)(b) of the Bill effectively provides that the Bill applies to applications for amendment, renewal or re- grant of a resource authority, environmental authority or development approval. This is consistent with the Government’s policy announced in August 2010. However, DERM has recommended amendments to the Explanatory Notes to clarify that the assessment will only relate to the matters applied for in the application. Assessment would not be required where no new or amended Environmental Authority is required under the Environmental Protection Act 1994. For example, if a resource development submits an application for an amendment to the environmental authority to increase the level of discharge into a local waterway, the application will be assessed to determine if the proposed amendments will have any impacts on SCL or potential SCL. If there are no impacts, the chief executive can make a decision to that effect under section 90 of the Act. In this instance, the assessment would not consider the entire resource development activities. Alternatively, where the application relates to a renewal or re-grant of an authority, the application would be assessed in relation to any future impacts that require a new or amended environmental authority. Current or past impacts will not be considered in these assessments. Sub 44 Transitional arrangements - Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to Agforce Whilst Agforce accepts that transitional arrangements are required, there EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and is one test case where we believe that the process has failed. conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on Following the public release of the proposed framework on the 31st May the land from underground coal mining must be used. 2011, the Stakeholder Advisory Committee subsequently met on the 2nd June 2011 to discuss the details relating to the SCL policy. At this The Bill is consistent with public statements made by the Government relating to EPC 891. meeting several specific case examples were raised for clarification regarding the impact of SCL policy on the approvals process currently progressing – the transitional arrangement framework. This was to pertain to the timing of all applications, regardless of progression, as at 31 May 2011. The Bandanna Coal resource proposal was raised as a specific example during this meeting, amongst other examples. The SCLAC was briefed at this time that as the proponents had not yet finalised a terms of reference that the government had approved prior to the release of the SCL policy, then the entire approvals process now falls under SCL guidelines, as outlined in the framework. It has since come to AgForce’s attention that a “deal” was then done with the Bandanna Coal proponents outside of the framework of the SCL policy position and without the acknowledgement of the Stakeholder Advisory Committee. This deal pertained to the project not being fully captured by the framework (despite the SCLAC being lead to believe the lack of a finalised and Governmentally accepted Terms of Reference for the appropriate environmental approvals would capture this project), and that whilst alternate project stipulations would be placed on the project, the project would still go ahead, despite it being directly alienating SCL. We also wrote to the Minister at the time regarding this issue, but to date have had no formal reply. As such, AgForce is seeking the details of 46 Environment, Agriculture, Resources and Energy Committee provide advice February 2010 to Sustainable Planning Act 2009, and resource acts. The Central Protection Area which includes the ‘Golden Triangle’ region ofThe Central Southern Queensland Protection near Area which includes the Darling Downs, Lockyer Valley, Granite Belt and South On 31 May 2011,area and the protection Government areas. announced Two the protection areas implementation were identified: ofEmerald; the and SCL policy through a management Burnett. The Bill is consistent with theThe Government’s announced Bill policy. integratesEnvironmental Protection Act with 1994 the existing assessment processes under the However, the Ministercontinue for and will, Finance, in future, Natural provideThe Resources advice on Bill and implementation of does The thegovernment Bill. Arts arrangements not for has implementation make of indicated provision new legislation. that for the extension Committee activities. will However, such activitiesThe are Bill a does normal notexemptions attempt under part to clause 6 of establish allow a for development moratorium in certain on circumstances. all development. The principles in clause 11 and the No comment required. DERM comments The Strategic Cropping Land Stakeholderon Advisory the Committee development was formed ofresource in the and SCL urban policy.meet development regularly sectors, since The its local Committee, formation. which government The includes and Committee is representatives natural not from established resource under the management the agriculture, Bill. groups, has Planning - FFQ recommend that the legislation provide for the initial landscape S113 allows forthere the is executive significant to economicS118 declare allows benefit for and exceptional the that circumstancesbenefit same (ie outweighs if economic). declaration protection if (Sub and there 45,Chapter p.1) 2 is - a significantFFQ community recommends the committeethe support legislation (Protected the area) Protection AreaMaps – section Central of Queensland - The Southern Qld map containsand in will general provide the for mainstart farming long areas term for at protection. that risk TheQueensland region, Central Qld however that map there is“management are need a area” good many part better of smaller the legislation. areas protection (Sub in 48, p.2) than Central that provided by the Mitigation - Questions how theproductive capacity proposed of Act designated landallows will for mitigation future ensure for generations given the allimpacts S4(4) land are preservation in permanent of (there managementthis the is areas dry continent); a where S6(1)(f)(ii) limited development allowsunder number for the of approved State possible development development schemes Act offsetspotentially when in that destructive act approves developmentshundred such kilometres large as long and private crisscrossingprotection the rail principle State; corridors S11(2) takeswhile states several precedence S11(3) that states over the must that avoid all SLC the development onlystates avoidance if interests minimisation it principle means is meansSCL reasonably development whenever practicable development must possible to and minimize S11(5) doimpacts the allows so for of and impacts mitigation development S11(4) offsets of when cannot the be otherwise reasonably avoided and Section/Initiative/comment Comment/key point which this deal has been completed.Strategic (Sub Cropping 44, Lands p.4) Advisory CommitteeAgforce (SCLAC) requests - that the SCLACscientifically be retained to based ensure thatthresholds] [the set usage is of the of casethis proposed criteria, by Bill being takes effect. coupled provided (Sub 44, with with p.1) data and regionallyExtension information process as - specific Agforce calls on thewill Government be to to outlineintrinsically what important publicly to he consult ensure extensionand all process on obligations stakeholders under are this the proposed aware policy. new of (Sub their 44, framework. pp.1-2). rights This extension is Sub 48 FutureFood Sub 48 FutureFood Queensland Sub 48 FutureFood Queensland Agforce Sub 45 Peter Boulot Sub 44 Agforce Sub 44 Submitter Cl.
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8 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Queensland planning in consultation with NRM groups, Community and Governments Regional planning in Queensland is achieved through the Sustainable Planning Act 2009. Clause 80 states that to provide master planning for the landscape after mining has been there must be a State planning policy under the Sustainable Planning Act 2009 about SCL. The State planning completed. (Sub 48, p.4) policy will address statutory regional planning under the Sustainable Planning Act 2009. These regional planning processes do not apply to mining and resources developments. However, the Bill is consistent with Government’s announcements on the SCL policy. Sub 48 Subsidence - Clause 14 defines when development has a permanent or temporary impact. Chapter 3 of the Bill sets out the FutureFood The legislation has to be very clear that if effects of underground mining framework for assessing the impacts of development on SCL. Impacts from underground resource Queensland do occur on the surface of SCL then the companies will be made liable. developments, like subsidence, will be considered when assessing whether a development will have a Substantial bonds must be held in trust to rehabilitate in future years. temporary or permanent impact on SCL. The Bill (clauses 98 and 99) allows for conditions to be imposed on (Sub 48, p.4) developments to manage or prevent those impacts. These conditions may include conditions requiring the applicant to restore SCL to its pre-development condition. If these conditions are not complied with, it may be an offence under the Act on which the authority was issued (e.g. Environmental Protection Act 1994). Clause 99 allows the chief executive to require a financial assurance from the development proponent as security to cover the costs of non-compliance with the conditions. The chief executive in deciding the amount of the financial assurance can consider factors such as the cost of restoring the land. Clause 104 contains provisions enabling the chief executive to require a change to financial assurance at any time. Sub 49 A SCL pathway - The criteria and thresholds are specified in the Bill to provide certainty and transparency to all stakeholders. The Lee McNicholl I further submit that your committee consider developing a SCL pathway Bill does not include consideration of a farm plan as this would introduce considerable uncertainty into SCL that allows farmers with > 5% slope to submit a farm plan which meets validation decisions and the potential for perverse outcomes (eg a farmer ceasing to manage erosion in acceptable soil erosion criteria. Soil Conservation officers could readily accordance with the plan affecting the land’s status as SCL). validate or reject such plans. If validated and the farm meets all the other SCL criteria then it should be granted SCL status. (Sub 49, p.2) Sub 50 Cost of validation and development assessment on strategic cropping On 31 May 2011, the Government released a Regulatory Assessment Statement for public consultation. The Local land - Regulatory Assessment Statement provided an assessment of the costs to business, landholders and Government The LGAQ understands that the proposed application fees associated government of implementing the SCL policy. This included an assessment of cost recovery options and potential Association of with validation, development assessment and assessment of exceptional fees that might be charged. Queensland circumstances related to strategic cropping land are based on a model of Ltd full-cost recovery by the State Government. However, the Association The Government is currently considering submissions received and a regulation will be prepared under clause welcomes a review of all of the proposed assessment fees to ensure that 271 of the Bill to identifying the fees that will be payable under the Act. local land owners are not disadvantaged. As indicated by Minister Nolan at the Stakeholder Advisory Committee Meeting held on 27 September On 31 May 2011, the Government announced the implementation of the SCL policy through protection areas 2011, at a minimum a review of the $27,000 development assessment and a management area and in the management area, land must meet the SCL criteria and thresholds for the fee may occur, which could see the introduction of one or two tiers of relevant zone (schedule 1 of the Bill) and have a history of cropping. lower fees that will better reflect smaller development scales. Similarly, property identified in one of the two Strategic Cropping The Bill is consistent with the Government’s announced policy. Protection Areas is considered to be land “under intense and imminent development pressure”; where as land in the Strategic Cropping Management Area is considered “important to Queensland’s cropping and horticultural industries”. Given this wording, it can be concluded that the Protection Areas are of greater significance and intended for greater protection. Unfortunately, as a result of the determination of application fees for strategic cropping land validation and the way in which the policy has been drafted, it is more expensive and requires more evidence to determine if there is strategic cropping land associated with 48 Environment, Agriculture, Resources and Energy Committee Clause 80 of the Bill requires a State planning policy (SPP) under the Planning —The Government released a discussion paper on conserving and managing food-producing Clause 3 of theState Bill Planning provides Policy that 1/92 Development thea and broader purpose Conservation range of of of agricultural the Agricultural land. The Land Bill consultation (SPP1/92) is undertaken continues to in to developing protect applyon the to land SCL the that policy Strategic is andCommittee legislation highly Cropping and is suitable Land submitted outlined for to in Bill cropping. the thefollowing: 2011 Committee Consultation by Briefing prepared DERM for onFebruary 4 the November 2010 Environment, 2011. This Agriculture, consultationland Resource for has public included and consultation. the Energy Consistency of the Bill2011 with Explanatory Notes. fundamental The legislative Bill is principles generally is consistent with explained the in fundamentalPotential legislative the breaches principles. Strategic are Croppingpayable justified Land because Bill of in the Act the and Explanatory for various Notes provisions in for chapter clause 7 relating 266 to investigations providing and that enforcement. no compensation is Urban expansion is addressedSustainable through Planning Act local 2009. governmentAct planning about SCL. schemes and Awould draft regional SPP not planning was apply released under for togovernment the public consultation areas planning on already 5 schemes. August designatedschemes 2010. for are However, The remade urban draft SCL or SPP developmentareas amended, stated will in under that or clause it need existing 291 when of to new regional theThe plans Bill plans be August are or and considered consistent 2010 schemes with local SCL when are the policy policy developed. those outlined framework in existing The released the exemptions draft plans by SPP. for the and urban Government provided that SPP1/92 would continue. DERM comments While clause 80 requiresnot that affected there within must an be urban footprint. an SPP for SCL, clause 291 provides in part, that development is Legislative ] ‘unambiguous and drafted in a sufficiently clear and Draft SPP - SPPs (including SCL SPP) are eroding the urban footprint. Draft SPP - Overlap between the draft SPP and SPP1/92 Consultation - Inadequate time for theduring new consultation. Act to address community concerns raised Fundamental legislative principles - The new Bill doesindividuals…’ not as have ‘…sufficient it regardStandards is Act to 1992 not, rights and asprecise liberties way.’ required of inThe S4 Property (3)(k) Council’s [of submissionpolicy the of and 30 Septemberlandholders associated highlights to trigger that the determine mapping‘strategic cropping land’. whether lacks or theAmbiguity in not the detail policy means their required thatwork extreme land fees by must and is onerous beregardless consultancy classified of paid whether as thecropping for land’. land by is ultimatelyAs individual determined raised in to landholders our submission, bean – ambiguity ‘strategic ‘over-riding remains public as a need’ to and what what cost is will classified constitute as burden ‘mitigation’. Section/Initiative/comment Comment/key point a property in asuggests Management Area that than this infurther is a consideration in an Protection its Area. inconsistent implementation.(Sub The 50,SPP application p.3) LGAQ eroding confidence of - policyOf and major requires concernGovernment to SPPs are the dramatically propertyregional eroding industry urban plans. footprints is A identifiedwithout the any in series analysis way of of this in issue.With SPPs which have additional State beenpotentially SPPs produced impacting by including theholistically the analyse urban the the State impacts footprint,must of Strategic now it additional be SPPs seen Cropping is on as a the clear significant land urban policy footprint that failure. also a failure to Sub 51 Property CouncilAustralia of Sub 51 Property CouncilAustralia of Sub 51 Property CouncilAustralia of Sub 51 Property CouncilAustralia of Sub 51 Property CouncilAustralia of Submitter Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point February 2010—A Stakeholder Advisory Committee was formed (including representatives from the agriculture, resource and urban development sectors, local government and natural resource management groups) and has meet regularly since its formation. February–March 2010—The Government hosted community information sessions on the discussion paper. 23 August 2010—The Government released Protecting Queensland's strategic cropping land: A policy framework (August 2010 framework) for public consultation. August–September 2011—The August 2010 framework was presented at nine community forums on coal seam gas in south-west Queensland. 14 April 2011—The Government released the proposed criteria for identifying SCL, a technical assessment report and independent expert review report of the proposed criteria. 31 May 2011—The Government announced implementation of the SCL policy through Protection Areas and a Management Area, released the transitional arrangements, and released a Regulatory Assessment Statement for public consultation. In addition, the Government announced mitigation requirements. 5 August 2011—A draft State Planning Policy was released for public consultation. 24 August 2011—The Government announced there would be a Science and Technical Implementation Committee. 8 September 2011—Guidelines for applying the proposed criteria at a property level were released, as well as an online mapping tool. 27 September 2011—The Government announced that legislation would be introduced into Parliament in late October 2011, and released further information on mitigation arrangements. The Bill is consistent with previously announced government policy. Sub 51 Fundamental legislative principles - Fundamental legislative principles are addressed in the explanatory notes to the Bill. Property The FLPs are not adequately addressed, specifically, the Bill does not The Bill provides the detail for how SCL is identified (chapter 2). This detail was not appropriate for inclusion in Council of have sufficient regard to rights and liberties of individuals as it is not the draft SPP released for public consultation in August 2011. Australia unambiguous and drafted in a sufficiently clear and precise way. The SPP submission highlights the policy and associated trigger maps lack The August 2011 policy framework made it clear that the new Act specifically for SCL resources would describe detail required by landholders to determine whether their land is classified how SCL was identified including indicative maps of where SCL resources may exist. as SCL. Sub 51 General Comment on RAS - On May 31 2011, the Government released a Regulatory Assessment Statement for public consultation. The Property The economic impact that the Bill will have on landholders (particularly in Regulatory Assessment Statement provided an assessment of the costs to business, landholders and Council of areas such as Ayr) needs to be further assessed prior to finalising the Bill. government of implementing the SCL policy. This included an assessment of cost recovery options and potential Australia fees that might be charged. The Government is currently considering submissions received and a regulation will be prepared under clause 271 of the Bill to identifying the fees that will be payable under the Act. Sub 51 Draft SPP - This comment relates to the draft SPP released by the Government on 5 August 2011 for public consultation. Property SPP submission included. The Government is currently considering submissions received and a final SPP will be prepared as required by Council of clause 80 of the Bill. Australia Sub 53 Draft SPP - On 5 August 2011, the Government released a draft State Planning Policy for public consultation. Southern The primary concern in not with the legislation itself, but rather how the The Government is currently considering submissions received and a final SPP will be prepared as required by Downs Act would be implemented by DERM through the Draft State Planning clause 80 of the Bill. Regional Policy (SPP). While the purpose and intent of the proposed Act has Comments made in this submission mainly relate to the draft SPP which was released for public consultation. Council considerable merit, strong concern is raised on the significant impacts the The assessment trigger for development applications to be referred to the DERM is that the development SPP will have on farming activities and the ability of farmers to diversify “footprint” is greater than 750m2. This is considered to be of sufficient area to allow development, including for so as to ensure that Strategic Cropping Land (SCL) continues to be used economic diversification, such as bed and breakfast operations. Developments with a footprint of up to 3000m2 50 Environment, Agriculture, Resources and Energy Committee triggers. In particular, a Sustainable Planning Regulation 2009 On May 31 2011,Regulatory the Government Assessment released a Statementgovernment Regulatory of implementing Assessment provided the Statement SCL an for policy. public assessment consultation. ofThis The included the an assessment of costs cost recovery options to and potential business, fees that landholders might be charged. and DERM comments may occur on SCL before requiredClause to 291 demonstrate exceptional provides circumstances. building, exemptions structure from or the horticulture, activity on SCL supporting or cropping, potential SCL intensive will not animal be triggered industries for assessment involving by the feedlotting, State intensive under the SCL Bill. the 70 wineries on the GraniteBuildings Belt. for farmers who need toensure carry they on are secondary able businesses to to remainrepair on workshops, the small land, shops e.g. selling small farmproduce stores, produced farm machinery small crafts, local scale tourist accommodationcabins in and the freestanding B&Bs. form of The construction of a second dwellingthe dwelling on land is defined needed as for SCL farmwho even workers/ are if needed managers to or family help members runA the rural industry farm. with an areamay over be 750m2, needed even for though the this ruralthere activity use are of many the examples of land. For onprocessing example farm buildings in packing, that SDRC cold would be rooms and directlyproduction associated on the with land, the but rural exceedinclude the wineries, 750 packing m2 and limit. cold Buildings roomsprocessing for would and vegetable packing growing, buildings for stonegrain fruit storage and facilities citrus and orchards, the like. Restaurants and tourist accommodation which are integral parts of o o o o under the Act forunreasonable the and validation would of put SCL a or rural to landowner use into SCL. a These position fees are that the SDRC is concerned that theproperly full considered impact and of will these resultisions restrictions in of has strong the not public proposed been opposition Actimplemented. to and I the am will prov- concerned only that becometrying the apparent very to after important the achieve objectives Act the mayfrom Act is the be is unreasonable restrictions damaged under by theConsultation related RAS adverse SPP. - public opinionConcern resulting is also expressed atDERM the in very the high SPP application Overview fees proposed for by the processing of applications required prohibited by the SPP are essential parts of rural activity inAs today’s an world. example the SPP prohibits: Section/Initiative/comment Comment/key point for agricultural purposes rathersubsequent than pressure have to use the it landSPP for become non includes rural unused a purposes. with list Annexnot of 1 apply of the to. the development draft This andactivities list activities that is would that very commonly the short be SPPrural and seen activity does does as subject a not to suitable normal include andother planning a compatible considerations. uses wide with Under cannot range the of SPP permanentlyland all alienate mapped SCL as and SCL.many cannot These appropriate be provisions activities located are withoutof unreasonable on any impact and consideration of preclude of the use. the(SDRC) Experience size in or the area level Southern Downs hascontinued Regional use Council shown of rural that properties farm for rural diversification production. Many is of critical the uses for the Sub 53 Southern Downs Regional Council Submitter Cl.
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2 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point fees payable may preclude applications for otherwise appropriate uses. The fee for validation of SCL is proposed at $3998. If the validation The Government is currently considering submissions received and a regulation will be prepared under clause process determines that some part of land is not SCL and the landowner 271 of the Bill to identifying the fees that will be payable under the Act. wishes to use the land that is not SCL they must still pay a fee of $27,245 to DERM as part of the application process even though the owner is not using SCL. In the case of SDRC this fee is 10 to 20 times higher than the applicable application fee required by Council if the owner requires a planning approval. DERM’s role in the planning process on land that has already been determined by DERM as not being SCL is minor, however the fees proposed are excessive and have no regard to the cost of DERM’s involvement in the application process. Similarly the fee proposed by DERM for the use of SCL under “exceptional circumstances” is $46,253. This fees is so high that it will restrict applications for uses that are not permitted under the Act, but may be an integral part of the continued rural use of a particular part of a property. In conclusion, I am concerned that this very important piece of legislation may be subject to strong community concern and criticism, once the unreasonable requirements associated with the on ground implementation of the Act as contained in the draft SPP and associated DERM requirements comes into effect. 003 Sub 2 Purposes of Act - Clause 3 of the Bill provides that the purposes of the Bill are to protect land that is highly suitable for cropping; Householders’ Need to preserve all good productive farming and grazing land manage the impacts of development on that land; and preserve the productive capacity of that land for future Options to generations. This is consistent with the Government’s policy announced in February 2010 that the best cropping Protect the land—strategic cropping land— is a finite resource that must be conserved and managed for the longer term. Environment State Planning Policy 1/92 Development and Conservation of Agricultural Land (SPP1/92) continues to apply to Inc a broader range of agricultural land, which includes grazing land. 003 Sub 22 Purpose of the Bill - Clause 3 establishes that the purposes of the Bill are to: protect land that is highly suitable for cropping; and Ian and Janet We acknowledge that there are benefits associated with the gas industry. manage the impacts of development on that land; and preserve the productive capacity of that land for future Cox However there is a need to ensure that all measures are put in place to generations. Clause 17 of the Bill provides that a resource activity includes activities carried out under an retain our food production land for all time as there is no greater benefit authority issued under the Petroleum Act 1923 and Petroleum and Gas (Production and Safety) Act 2004. than to be able to feed the population. There is also a need to respect the Therefore, CSG development will be assessable under the Act. Clause 14(3)(a)(ii) specifically provides that a present owners of the land cumulative impact may be prescribed in a regulation to be, in effect, a permanent impact. The Bill specifically provides an example of drilling or wells under a resource Act carried out on the land at a level or density which, or the cumulative effects of which, impede it from being cropped for at least 50 years. 003 Sub 26 Purpose of the Act - Zonal Criteria - Clause 3 of the Bill provides that the purposes of the Bill are to protect land that is highly suitable for cropping; ASSSI dismayed at the creation of yet new criteria to identify the most productive manage the impacts of development on that land; and preserve the productive capacity of that land for future cropping land and generations. This is consistent with the Government’s policy announced in February 2010 that the best cropping the onus being placed on the landholder (or the company wishing to land—strategic cropping land— is a finite resource that must be conserved and managed for the longer term. A undertake a particular development) to use the proposed criteria to technical assessment involving detailed checking of 128 sites across the five strategic cropping land zones— identify SCL when maps have already been produced, for good quality Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping zones—and an agricultural land (GQAL in many instances but not all mirrors the SCL independent expert review were undertaken to ensure the criteria are scientifically robust. On 14 April 2011 indicative mapping) under the Queensland Government’s State Planning the proposed criteria were publicly released, along with the technical assessment report and independent expert Policy 1/92, Development and Conservation of Agricultural Land. review. Further detail about the consultation undertaken in developing the criteria is outlined in the Consultation Briefing on the Strategic Cropping Land Bill 2011 prepared for the Environment, Agriculture, Resource and 52 Environment, Agriculture, Resources and Energy Committee for which highly suitable Environmental Protection Act 1994 ’. a scarce natural resource identified by soil, climatic and landscape features that make is Clause 3 is consistent with‘ the August 2010 SCL Policycrop production Framework which referred to strategic cropping land as Clause 3 establishes thatmanage the the impacts purposes of of development the on that Bill land; are and to: protect land that is highly suitable for cropping; and The Bill’s purpose provided forimpacts in of clause development on 3 that is land. to protect land thatOther is highly legislation suitable is for in cropping2000 place and to which manage regulate the addresses theaddresses impacts access environmental harm of to caused development to groundwater on groundwaterThe supplies. water purposes supplies supplies of and the including Bill thethe the provided Water for impacts Act in of clausegenerations. 3 The development are purposes to of on the protect Bill land that do that not is land; extend highly to protecting suitable andHowever, infrastructure. for preserve cropping; impacts manage the fromassessing productivity whether underground a capacity development resourceconditions will of to be developments, have imposed that a on like developments land temporary to or subsidence, manage for permanent or prevent will future impact those on impacts. be SCL and considered the when Bill allows for The purposes of the Billthe provided for impacts in of clausegenerations. 3 development are to on protect land that that is land; highly suitable andClause for 3 preserve cropping; establishes that manage the thethe purposes productivity of impacts the Bill capacity are ofgenerations. to: of These protect development purposes land that are that on consistent is landAugust highly with 2010 that suitable the (Protecting for for Government’s Queensland’s land; cropping; policy strategic future manage cropping framework and land: which A was policy preserve released framework). onClause the 23 269 productive of the capacityJanuary Bill 2016. of requires the that Minister to land conduct for a review future of the Act between 30 January 2014 and 30 DERM comments Energy Committee. Clause 227Implementation of Committee. the The Bill Committee’stechnical provides advice functions about that will the the administration beby of Minister to the the may Act give Minister. relating Clause establish the to 269before Minister soil a provides 30 and that independent Science January land the 2016. scientific resources and Minister and must and Technical other review matters the decided Act’s operation after 30 January 2014 but Purposes of the Act - How the purposes are achieved - Climate change - Climate change adaptationclimatic needs zones to as part be ofreviewed the identified in purposes the and of future the giving protectedchange. more Act. (Sub definition in This 43, around Act p.2) all the will impacts need of to climate be Purposes of Act - How theApparent purposes definition are change achieved - fromsuited “the for best cropping”. This cropping looseningfor land” of to the potential “land definition new may highly questions reopen future the whether case cropping the landdefinition, trigger need areas to maps be in redrawn and toQRC the reflect recommends: zones, the future. new revert based definition. QRC tooriginal on definition also “the “best a of best the different cropping best cropping land” land”. or preferably the The Bill has beenand unable a to loss clearly of productivitythose capture may that the result disturb fact from the that developmentthe surface SCL practices of alienation beyond Bill the landdevelopment should proposals i.e. that the also may soil.supports impact QFF provide validated on submits SCL. the By for that critical waythe of infrastructure the example, that Act, to deliver the ability onimpact appropriate the from to purposes consent underground of resource authority apply developmentin must activities damage conditions that be to may irrigation tasked result to or infrastructure, to land eg. consider Dam subsidence, or whichproductivity ditch potential. cannot structural be impact, restoredimpact to on family a farms level – Legislation that must maintains acknowledge thatsame some family for family many farms decades have been in the Section/Initiative/comment Comment/key point Development impacts – Growcom is concerned thatpeople the effects of beyond developmentconsidered. which the will Water impact immediate indamage particular development caused is areas to crucialcropping in underground a have to whole water district. successful notDevelopment supplies cropping, impacts - been can and adversely affect Sub 54 Origin Energy Inc. Sub 42 Queensland Resources Council LindsayAvriel Tyson & Qld MurrayDarling - Committee Queensland Farmers’ Federation Growcom Submitter 003 & 004 003 & 004 003 Sub 43 003 Sub 40 003 Sub 37 003 Sub 36 Cl.
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4 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Section 3(a) and 4(1)(a) and (b) suggest that land that is highly suitable preserve the productive capacity of that land for future generations. for cropping is strategic cropping land. This is a signficant shift from the Government’s stated intent to protect ‘the best of the best cropping land’ Clause 4 (1) (a) and (b) states that to achieve its purposes, this Act (a) identifies areas in which land that is likely when it released its initial discussion paper on the issue in February to be highly suitable for cropping may exist (called ‘potential SCL’); and (b) has provisions for deciding whether 2010. Similarly, the documents Proposed criteria for identifying strategic or not land is highly suitable for cropping (called ‘strategic cropping land’ or ‘SCL’). cropping land published in April 2011 and Guidelines for applying the proposed strategic cropping land criteria published in September 2011 Clauses 3 and 4 (1) (a) and (b) are consistent with the August 2010 SCL Policy Framework released by the refer to intent to protect Queensland’s best cropping land. Government which referred to strategic cropping land as ‘a scarce natural resource identified by soil, climatic Section 14A of the Acts interpretation Act 1954 requires, where there is and landscape features that make is highly suitable for crop production’. more than one possible interpretation of a provision, the interpretation that best achieves the purpose of the Act to be applied. Given this, Origin requests that sections 3(a) and 4(1)(a) and (b) be amended by deleting works “land that is highly suitable for cropping’ and inserting the following: ‘land that is the best of Queensland’s cropping land’. 004 Sub 21 Definition of SCL - Clause 4 (1) (a) and (b) states that to achieve its purposes, this Act (a) identifies areas in which land that is likely Xstrata Coal Throughout the Policy development, SCL has been described variously to be highly suitable for cropping may exist (called ‘potential SCL’); and (b) has provisions for deciding whether and inconsistently by Government. The draft State Planning Policy for or not land is highly suitable for cropping (called ‘strategic cropping land’ or ‘SCL’). SCL contained no definition at all. The definition in the Bill is vague and Clause 4 (1) (a) and (b) is consistent with the August 2010 SCL Policy Framework which referred to strategic circular. cropping land as ‘a scarce natural resource identified by soil, climatic and landscape features that make is Recommendation: Provide a clear and unambiguous definition of SCL. highly suitable for crop production’. For example, ‘SCL is the best cropping land’ is a definition that has been Clause 9 of the Bill defines SCL. On 5 August 2011, the Government released a draft State Planning Policy for widely used by stakeholders. public consultation. The Government is currently considering submissions received and a final SPP will be prepared as required by clause 80 of the Bill. Definitions in the SPP, wherever possible, will be consistent with definitions in the Bill. 004 Sub 24 Prescribed exceptional circumstances - Clause 290 amends the Sustainable Planning Regulation 2009. The amendment will trigger material changes of Cement CCAA believes that consideration should be given to ensuring that the use, other than a use or in an area mentioned in schedule 13A, of a lot of 5ha or larger if the footprint for the Concrete and “exceptional circumstances” provisions allow for the extraction of change of use is- wholly or partly on SCL or potential SCL; and more than 750m2. Aggregates industrial or building materials (such as sand and gravel) in locations Clause 292 defines footprint as (a) the proportion of the relevant lot covered by buildings or structures measured Australia where proponents could demonstrate a local regional need. Such to their outermost projection. Sand and gravel extraction is not a building or structure and therefore will not be proponents would obviously need to continue to meet other planning, triggered for SCL assessment. development and assessment approvals from state and local authorities. Clause 292 item 7 provides that development in a Key Resources area is not assessable under the SCL (Sub. 24, p.2). framework. 004 Sub 26 Definitions - Clause 3 is consistent with the August 2010 SCL Policy Framework which referred to strategic cropping land as ASSSI Definition change for ‘land that is highly suitable for cropping’ to include ‘a scarce natural resource identified by soil, climatic and landscape features that make is highly suitable for soil, climatic and other factors. crop production’. Climate was considered in setting the boundaries of the five criteria zones to reflect the different cropping systems and climatic variations across the State. Soil and landscape features were considered when developing the criteria, provided for in Schedule 1 of the Bill. 006 Sub 7 Exclusions from this Act - Exemptions are provided in clause 6 and clause 291 of the Bill. The exempted infrastructure description GE Energy Harmonise the exemptions in the Bill with those provided for in Draft SCL referred to in the draft SCL SPP will be amended in the final SPP to be consistent with the clause 6 exemptions. SPP i.e. infrastructure required to deliver essential services to the community where the infrastructure is being developed under the Clause 291 provides exemptions for developments broadly consistent with those previously listed in Annex 1 of Transport Infrastructure Act and the Electricity Act. the draft SCL SPP and these exemptions are specific to development types assessable under SPA. Clarify in the Bill, and the SPP, the definition of exempted infrastructure that is "required to deliver essential services to the community where the The SPP is currently being finalised including consideration of public feedback. 54 Environment, Agriculture, Resources and Energy Committee . The framework stated on page 10 that . The framework stated on page 10 that . The framework stated on page 10 that Clause 269 provides for a review of the Act’s Protecting Queensland’s strategic cropping land: A policy framework) Protecting Queensland’s strategic cropping land: A policy framework) Protecting Queensland’s strategic cropping land: A policy framework) The policy recognises that some developments are critical to deliver essential services to communities. State The policy recognises that some developments are critical to deliver essential services to communities. State The policy recognises that some developments are critical to deliver essential services to communities. State 5 August 2010. The draftunder SPP stated existing that regional it plans wouldland and not uses local apply that would to government be areas planning291 exempt already schemes. of (annex designated the 1 The for Bill – draft urban are page consistent development SPP 13 with of also the the listed policy draft outlined a SPP). in The number the exemptions of draft for SPP. urban areas in clause Clause 5 of the Bill providesClause that 6 the provides Act for will developments bindare the critical to State. to which provide the essential Actprojects community does that services are not and provided apply. infrastructure as of It aThis State identifies community importance clause service a and such range other is as of government electricity,( consistent developments roads that and with other the transport infrastructure. “ Government’s policy frameworkinfrastructure, which such was as roads releasedAct under 1994, on will the 23 be Transport exempt August Infrastructure fromThe the Bill Act 2010 requirements is 1994 of consistent the with and framework.” theClause powerlines Government’s 6 under policy provides announcements. the for Electricity developmentsare critical to to which provide the essential Actprojects community does services that not and are apply. infrastructure provided of ItThis as State identifies importance a clause a and community range other is service of government ( consistent developments such that as with electricity, the roads“ Government’s and other policy transport framework infrastructure. infrastructure, which such was as roads releasedAct under on 1994, the will 23 be Transport exempt August Infrastructureoperation from within Act 2010 the between requirements 1994 30 of January and the 2014Clause powerlines framework.” and 6 under 30 provides January the for 2016. Electricity developmentsare critical to to which provide the essential Actprojects community does services that not and are apply. infrastructure provided of ItThis as State identifies importance a clause a and community range other is service of government ( consistent developments such that as with electricity, the roads“ Government’s and other policy transport framework infrastructure. infrastructure, which such was as roads releasedAct under 1994, on will the 23 be Transport exempt August Infrastructure fromThe the exemptions Act 2010 requirements listed 1994 of in the and clause framework.” Bill powerlines 291 as under specifically relate the an to Electricity planning amendment new policy to development (SPP) assessment the under triggers the Sustainable included Planning in Planning Act the Regulation about SCL. 2009. Clause A draft 80 SPP of was the released for Bill public requires consultation a on State DERM comments We can expect toAreas see overriding an local undesirable government proliferation planning, of State because SDAs Development are exempt, schedule or section,circumstances. eg The in list Sectionexamples also of 6, the appears apparent Schedule to inconsistenciesfollowing: 13A and be drafting and somewhat issues include random.S6(d) exceptional the – A exempts strategic few portof land, Brisbane but (which not has either beenis airport privatized. normally land Just a or like wide the strategic range Port portthis oif land, port-related land, there or airport-related not developmentexemption on just under S6(b). core infrastructure.Electricity This transmission is gridseither and not other supply covered critical networks by linearpower are infrastructure the generation. exempt, such TIA as but waterThere not pipelines, are and ant-competitive not issuesprotection imbedded in of theinfrastructure TIA exemptions, or PPPs. with transport the infrastructure but not private transport Exclusions - Concern about cumulative impacts of exempt developments Exclusions from the Act - The listing ofscattered throughout exclusions the and Act, exemptions rather appear than to being be concentrated confusingly in one Section/Initiative/comment Comment/key point infrastructure is being developed1994 and under the the Electricity Transport Actbroaden 1994" Infrastructure the as Act per exempt theWater draft to SCL Act infrastructure SPP, 2000 and providing and seekAct infrastructure to State 1974. under Development and the PublicExclusions Works from the Organisation Act - Section 6 reducesaccountable eg cases the of clear ability negligence to bind the state – state should be Queensland Law Society Haystack RoadCommittee Coal ASSSI Submitter 006 Sub 41 006 Sub 30 006 Sub 26 Cl.
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6 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point but not other methods of delivering similar scale industrial projects. Schedule 13A is also confusingly drafted as some of the items are land uses but some are locations. (Sub 41, p.3) 006 Sub 41 Exclusions from this Act - Clause 22 (1)(b) is consistent with requirements under the Environmental Protection Act 1994 that allow for an Queensland It is noted that exemptions for existing projects and tenures only apply Environmental Authority to be considered when a tenure is amended, renewed or re-granted. Law Society until the project applies for renewal, amendment etc of any part of the tenure or environmental authority, which puts at risk existing projects an More detailed comments are made for similar key points for clause 22 in this table. involves an element of retrospectivity contrary to S4(2)(g) of the Legislative Standards Act 2011. (Sub 41, p.4) 006 Sub 42 Errors - Clause 6 (1)(e)(ii) has a minor drafting error (relating to numbering) which will be corrected. Queensland 6(1) (e) there are two parts (ii) Resources Council 006 Sub 42 Exclusions from the Act - Clause 6 of the Bill excludes a range of activities from the application of the Act. Among these is the Queensland s6(c) excludes electricity transmission but not generation. S285 gives a construction and maintenance of an electricity grid or supply network under the Electricity Act 1994. These Resources small exception for some renewable energy projects. QRC recommends activities relate chiefly to power lines and to substations of various classes. Infrastructure for electricity Council that electricity generation is also excluded from the Act and that generation is subject to the Act, however, provision is made for major renewable energy projects to be geothermal energy is included in the definition of renewable energy prescribed as an exceptional circumstance under Clause 285. Development under the Geothermal Acts was (s285). identified as being subject to the proposed policy framework which was released on 23 August 2010 (Protecting Queensland’s strategic cropping land: A policy framework).
006 Sub 42 Exclusions from the Act - Clause 291 provides exemptions from the Sustainable Planning Regulation 2009 triggers. These parts of Queensland QRC notes that some of the exemptions (under Sustainable Planning chapter 10 of the Bill amend the Sustainable Planning Regulation 2009. Resources Act) and not listed here but are listed under s290 Amendment of sch 7 Council (Referral agencies and their jurisdictions). QRC suggested that a note which sets out the exemptions that will apply under SPA would help make the application of SCl easier to understand. (Sub 42, Att p.1) 006 Sub 42 Exclusions from the Act - Clause 6(1)(e) provides that the functions of the Coordinator-General under Part 4 of the State Development Act Queensland S6(e)(ii) – The role of the Coordinator General is excluded (except for are subject to this Act and functions under all other parts of the State Development Act are excluded. Resources where the CG undertakes or directs other Government bodies to Council undertake works - i.e. traditional public utility and transport works) or Infrastructure facilities of significance under s125(1)(f) of the State Development Act are within Part 6 of that Act facilitates development in a State Development Area. and are excluded under Clause 6(1)(e). The private sector also undertakes these types of traditional public works for projects declared under the Act to be infrastructure facilities of significance (IFS). QRC argue that an IFS (section 125(1) (f) of the SDPWO Act) needs to be exempt from the policy because they also deal with socially/economically important linear infrastructure traditionally developed to provide public utility type services. An added criteria that the IFS must also be a Significant Project may be appropriate. (Sub 42, Att p.2) 006 Sub 43 Assessment of projects – Clause 6 provides for developments to which the Act does not apply. It identifies a range of developments that Qld Murray - QMDC asserts that each and every proposal, whether it be mining, are critical to provide essential community services and infrastructure of State importance and other government Darling residential, transport, power supply etc should still be assessed on its projects that are provided as a community service such as electricity, roads and other transport infrastructure. Committee merits to determine the degree of community advantage. QMDC does not This clause is consistent with the Government’s policy framework which was released on 23 August 2010 56 Environment, Agriculture, Resources and Energy Committee , Statutory Instruments Act 1992 and were publicly released, along with the . The framework stated on page 10 that proposed criteria states that if no time is provided, it must be done as soon as Acts Interpretation Act 1954 ’. ’. Acts interpretation Act 1954 a scarce natural resource identified by soil, climatic and landscape features that make it a scarce natural resource identified by soil, climatic and landscape features that make it for crop production for crop production identifies areas in which land thatSCL’); is and likely to be highly suitablehas for provisions cropping for may deciding exist whether (called orland’ ‘potential not or land ‘SCL’). is highly suitable for cropping (called ‘strategic cropping Protecting Queensland’s strategic cropping land: A policy framework) The policy recognises that some developments are critical to deliver essential services to communities. State - - to be highly suitable foror cropping not land may is exist highly (called suitableClause ‘potential for 4 SCL’); cropping (1) (called and ‘strategic (a) (b) croppingcropping and has land’ provisions land (b) or for ‘SCL’). is as deciding consistenthighly ‘ whether with suitable the August 2010Schedule1 SCL of Policy the Framework billsites which establishes referred across the to zonal the strategic criteria. fiveDarling A Downs strategic and technical Western cropping assessment Cropping land involvingcriteria zones—and an zones—Granite are detailed independent checking scientifically Belt, expert of review robust. Wettechnical were 128 assessment tropics, undertaken report On to Coastal and ensure 14 independent Queensland, the April expert Eastern review. 2011 the authorities. Clause 4 (1)(c)(ii) sets out“principles how to the protect purposes land of thatdoes the is not SCL Act apply or are to potential achieved development SCL and on andDrafting makes areas to conventions it that manage clear are the are not that impacts established SCL the ofwhich or by Bill development are potential on establishes the SCL. administered it”. The by Bill“land” the under the Office Act. of Queensland Parliamentary Counsel. ClauseClause 23 4 (1) defines (a) references and to (b) states that to achieve its purposes, this Act Clause 4 (1) (a)cropping and land (b) is as consistenthighly ‘ with suitable the August 2010 SCL PolicyClause Framework 38 (4) which of referred the possible. to strategic Clause 71 states that the decision has effect when the appeal period ends or an appeal ends. Clause 4 (1) (a) and (b) states that to achieve its purposes, this Act (a) identifies areas in which land that is likely DERM comments ( “ infrastructure, such as roadsAct under 1994, will the be Transport exempt Infrastructure fromChapter the Act 3, requirements 1994 part of 4 the and framework.” of powerlines the under Bill the provides Electricity the framework for SCL protection assessment for environmental resource decided non-SCL and – QRC state that the new concept of decided Decided non-SCL time taken toprojects. update the decisionQRC register, recommend this the laggiven section may be immediate trip amended effect upassessment process so some cannot and that impose conditions to anon-SCL”. on (Sub areas decision 42, that make Att are can p.2) “decided itDefinition be of explicit SCL - thatQMDC a is development concernedoffered by by the thearticulated lack in Bill relation of to Schedule for technical 1. SCL and scientific and definition recommends a better definition be Recommendation: Provide a clear and unambiguousStrategic definition cropping of land, SCL. SCL S9(1) – originally there were various policyto announcements protect that only the ‘the intention best’ was ofof Queensland’s cropping the land (eg Policyreasons refer to have Framework para been 2 identified document). in‘strategic support cropping of T land’ this is policy. various However, onlyregister in whatever as times, land being S9(1), is food SCL recordedhappens and in security to similarly, the be potential decision trigger ‘SCL’from mapped is time as just to SCL whatever time). under (Sub land 41, s10Strategic p.2) cropping (either land, at SCL the & decided outsetS9(3) non-SCL- or non-SCL is an important onethe and it decision is register defined on and the not basis a of the decision updating being taken. Depending on the Section/Initiative/comment Comment/key point support “blanket” exclusionsmultiple use of as easements to per minimise impact. clause 6. QMDC wouldApplication expect of SCL to other ActsIt – is still unclearresource how Acts the if SCL SCLsingle Act and petroleum will lease. non There apply SCL needsproposed in are to SCL relation legislation be captured will to better within, operate explanation the inDefinition for on these EPA of how situations. example, Land and the - a The Bill does notwhich contain it applies. a clear, unambiguous definition of the land to Qld MurrayDarling - Committee Inc. Queensland Resources Council Inc. Xstrata Coal Queensland Law Society Qld MurrayDarling - Committee Submitter Inc. 009 Sub 43 009 Sub 42 009 Sub 41 009 Sub 21 007 Sub 43 Cl.
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8 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point 009 – Sub 33 Strategic Cropping land, SCL and non-SCL Clause 9 and 10 establish the definitions for SCL and potential SCL which are used throughout the Bill. The 010 Ipswich City Potential SCL - definition of SCL in clause 9 refers to land recorded in the decision register as being SCL (ie has been decided Council Bill does not include a definition for ‘land identified as SCL’ as described under chapter 2 of the Bill to be SCL including an assessment of the criteria). The definition of potential SCL in in the draft SPP. Likewise the draft SPP does not use the term ‘strategic clause 10 refers to land shown on the trigger map as being potential SCL. This is consistent with the definition cropping land’ and ‘potential SCL’ as used in the Bill. This will result with of 'land identified as SCL' used throughout the draft SPP. Land identified as SCL was defined in the draft SPP different interpretations and outcomes in the SPP. Request that local as "Land that is defined as SCL in the proposed SCL legislation (eg. land that is confirmed as SCL against the governments are consulted with any amendments to definition of ‘SCL’ SCL criteria, or land shown on the SCL trigger map). This definition will be updated in line with definitions and ‘potential SCL’. adopted under the proposed SCL legislation." As outlined in the draft SPP, the final SPP will be updated to use the same terminology as the Bill. This means that for strategic planning, councils will be required to have regard to both SCL and potential SCL (consistent with the draft SPP). Administratively the Department may provide best available spatial information corresponding to SCL and potential SCL so that the land where the SPP applies can be considered in strategic planning. 010 Sub 21 Trigger map - The August 2010 policy framework provided that publically available maps would be the starting point for Xstrata Coal The trigger map is grossly inaccurate. DERM themselves have cautioned determining whether an area is SCL. that due to the broad scale of the spatial datasets used in the creation of the trigger maps, they are not recommended for use below a scale of The framework also provided that on-ground assessment would be necessary to confirm if a mapped area was 1:250,000 and should not be used at a property scale. in fact SCL and noted that maps were not a definitive measure of the extent of SCL at a local or property level All SCL assessment will be conducted at a property scale. The — rather the maps indicate an area where SCL is expected to exist but it would be the on-ground assessment effectiveness of the trigger maps in identifying the possible presence of against the criteria that would define the extent of SCL at site level. SCL, and reliably initiating on-ground assessment at a property scale, is highly questionable. The trigger maps are critical to the legislative framework and provide the mechanism for where development See report by Palaris (2011), reproduced her as Attachment 1. proponents will need to validate whether their land is SCL or not. Recommendation: The trigger maps serve no reliable purpose in the identification of SCL and should be deleted from the bill. The Bill as drafted is consistent with Government policy. 010 Sub 27 Potential SCL - On a number of occasions, including with the release of the SCL Policy framework on 23 August 2010 and the Moreton Bay Section 10 describes "potential SCL" as "...land in an area shown on the announcement of protection and management areas on 31 May 2011, the Government has released maps to Regional trigger map as being potential SCL.". The current trigger maps available assist the public to understand the policy framework. Council on DERM's website actually lists those areas as "area where strategic Reference within the Bill of maps and map titles refer to the official maps that will be released once the Bill has cropping land may exist". been passed by Parliament. 011 Sub 4 SCL principles - No comment required. Fitzroy Basin Support the SCL principles, particularly the protection principle Association 011 Sub 21 Impacts to SCL - Schedule 2 provides that pre-development condition, for a provision about the carrying out of development on Xstrata Coal What is “pre-development condition”? Is this different to achieving “SCL land, means that the land is restored to- (a) its condition before the development started; or (b) if the condition status”? cannot be worked out – a condition consistent with contiguous SCL for the land. Recommendation: Either define “pre-development” condition and the process for proving it; or change the wording to ‘achieving SCL status’ or words to that effect. 011 Sub 21 Mitigation measures - The objective of mitigation is to address the loss of agricultural productive value that occurs where a Xstrata Coal It would be extremely difficult to determine dollar amount for the “lands development results in permanent impacts on SCL. productive capacity as cropping land’ give the uncertainties of: seasonal climate fluctuations; climate change; different farming systems; past, The value of mitigation must be greater than or equal to the lost productive capacity. A per hectare zonal present and future farming practices; macro-economic assumptions Etc. mitigation rate will be prescribed by regulation and will be based on an averaged land value of arable land. This would require some form of complex exercise in agro-economics 58 Environment, Agriculture, Resources and Energy Committee “the best cropping land, . . , for a provision about the carrying out of development on pre-development condition Legislative Standards Act 1992 The principles are: Protection; Avoidance; Minimisation; Mitigation; and Productivity. Clause 11 (2)circumstances, doing provides so takes precedence that over all the development interests. protectionEach principle principle is is to bethe to context read of in the protect conjunction part with ofSchedule SCL the the 2 Act others and provides being and applied. that applied that,land, having means regard except that to the the in landcan Act’s not is purposes exceptional be restored and worked to- out (a) – a its condition condition consistent before with the contiguous SCL development for started; the or land. (b) if the condition Clause 11 provides five SCL principles.Protection; Avoidance; Minimisation; These principles Mitigation; and underpin Productivity.The the application retrospective of application the Act. ofsection 4 legislation The (3)(g) principles is of are: the consideredClause a 11 breach provides five of SCL fundamental principles. legislative These principles principles underpin under the application of the Act. Clause 11 (6) establishesmitigation the measures productivity in particular, principle provide which for aims the endurance to for ensure the that resourceProductivity for is any future the dealings generations. principle involving thatpurposes SCL underpins are the and achieved application while of balancing the competingEach land powers principle needs. and is functions to of bethe this context read Act of in in the ensuring conjunction part the with of the the Act others being and applied. appliedClause having 100 regard (2) to provides the thatprinciples. Act’s in The purposes imposing wording and of SCL clause protectionthe 100 conditions, application. ensures the the chief chief executive executive must can consider impose the conditions based SCL Other on clauses the merits also of requireconsistent consideration with the of mitigation the and productivity principles principles. – eg clause 138(1)(b) – a mitigation deed must be Clause 11 is consistentdefined with as strategic the cropping government land,As policy is a a announced general finite in resource aim, February that planningthat 2010 must and lead that be approval to conserved its powers and permanent should managed alienation be for or used the diminished to productivity” longer protect term. such land from those developments DERM comments Clause 132 defines the termimpacted mitigation by value which the is development thepolicy multiplied dollar announcements by value, of the determined 27 zonal by September 2011. the mitigation total rate. area permanently This is consistent with the Government’s clause 11 of the Act. General support for the Bill – CANEGROWERS supports the stated SCL Principles as identified in important as it requiresand restoration back not to “pre-development to condition” SCL status. This may require doing some upfront are prohibitively costlyreasonably (e.g. practical in because financialpositive they or SCL impacts. environmental result (Sub 42, impacts) in AttSCL p.3) principles are small - (orS11(2) even QRC negligible) state theover protection all principleexceptional sees development circumstances, SCL interests”. seems “take veryprecedent precedence This over broadly Regional principle, stated. Ecosystems, Wild Doeshabitat Rivers, which for SCL remnant protected vegetation take species? excepts or QRCcovered suggests only that by this principle S(3)addressed). should (Sub be purpose 42, Att of p.3) the Act (once the definitionSCL principles - of SCLS11(4)(b) is QRC state that this definition of the minimisation principle is SCL principles - S11(6) – definition ofseems productivity principle. entirely QRC circular state andfocus that it on this productivity is definition under uncleardeleted. mitigation. (Sub what QRC 42, this recommends Att p.4) the principleSCL section adds principles be - to the QRC notes that aspects ofwhat these SCL effect principles are new theyprotection and conditions it will is S100(2), unclear have. butexecutive as no They to guidance how they is areclarified are provided to as, considered be to for considered. the in Thisconsiderations example, principle chief developing needs it for to does be the minimisation not protection and mitigation recognise principles areas thepotential could project key be and footprint differences interpreted area to in changes management mean in a that areas. SCL management area The that Section/Initiative/comment Comment/key point with multiple inputetc. assumptions on rainfall,Recommendation: climate, commodity pricing Set a fixed feeand for vagaries mitigation of ($/ha) complex thatinterpretation agro-economic does or modelling. not min-interpretation of require payment This the requirements. General will uncertainty support limit for the an Bill re- - QFF strongly supportsdeficiency the is intent that it of wasby the a not lack SLC developed of years retrospective Bill. ago powers. Perhaps and is its therefore greatest limited Queensland Resources Council Queensland Resources Council Council Queensland Resources Council Farmers’ Federation Canegrowers Queensland Resources Queensland Submitter 011 Sub 42 011 Sub 42 011 Sub 42 011 Sub 39 011 Sub 42 011 Sub 37 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point benchmarking on what constitutes the pre-development condition and Part (b) of this definition would allow restoration to be benchmarked against areas of SCL contiguous with the making sure the regulator is comfortable with that target before any impacted land. disturbance to SCL occurs. The draft SPP (5 August 2011) was inconsistent in using both “back to SCL status” and “pre-development condition”. The drafters seem to have chosen the more administratively complex threshold. (Sub 42, Att p.3) 011 Sub 43 Lack of certainty in wording - The Bill provides for principles for strategic cropping land. The avoidance principle is to be read in conjunction Qld Murray - S11(3) - QMDC asserts that the term “reasonably practicable” does not with the other principles and not in isolation. If avoidance was applied as a principle without the qualification, the Darling provide certainty as is necessary. Case law abounds where Courts have principle would then be, in effect, a prohibition. Committee endeavoured to decide what “reasonable” and “practicable” mean in a Inc. The Bill provides instead that there are consequences for failing to avoid. That is that where development given situation. In QMDC‟s opinion, applying this condition to the avoidance principle causes ambiguity and serves to undermine the cannot avoid SCL it must minimise its impact and the temporary impacts must be rehabilitated and the responsibility to avoid development on SCL. This absolutely waters down permanent impacts must be mitigated. the avoidance principle. A precautionary approach means there should not be development unless it is assessed not to be SCL particularly in the Further in a protection area, a permanent impact can only be approved in an exceptional circumstance trigger map area. QMDC recommends that clause 11(3) be rewritten to determined in Chapter 4. read: (3) The avoidance principle is that development must avoid SCL. 011 Sub 43 Need to clarify role of mitigation - Clause 11 (5) (a) (ii) provides that mitigation measures must have a value at least equal to the loss of the land’s Qld Murray - S11(5) - The Bill must be worded to ensure impacts on SCL are productive capacity as cropping land. Darling minimised and managed through appropriate and effective mitigation Mitigation criteria are further identified in clause 135 and include outcomes of: Committee measures to achieve a net environmental gain. Mitigation offsets must increasing productivity of cropping in the State; Inc. deliver ‘like for like’ SCL in context of the agricultural system it exists provide public benefit; within including the functional landscapes and ecological systems have an enduring effect; associated with that SCL whilst also providing greater agricultural quality be quantifiable and able to be valued; and quantity for the affected region. The size of the offset area should for benefit the largest number of agribusinesses; example be larger than the area to be alienated for development. The be related to the cropping activity that was impacted, including the location it was being undertaken in. offset area must also include the opportunity of increasing the capacity of agricultural systems including associated functional landscapes and Clause 146 provides for an advisory group to advise the chief executive about mitigation measures under ecological systems. QMDC as a last resort supports mitigation offsets mitigation deeds or payments from the mitigation fund. Clause 138, 139 and 143 provide that the chief where it can be proven that at an absolute minimum there will be no net executive must seek advice from the advisory group and be satisfied the mitigation measure complies with the losses. mitigation criteria and is consistent with the mitigation principles and productivity principles under the SCL QMDC recommends that clause 11(5)(a) be rewritten to include: principles. (5) The mitigation principles are that – (a) for identified permanently impacted land - Clause 148 provides that the Chief Executive must publish information about the measures on the department’s (i)… website. (ii)… (iii)…if the mitigation requirement can be relied on, mitigation measures must result in no net loss to a region; and What assessment will be undertaken to determine whether mitigation measures proposed will have a “positive and enduring effect”, when will this be done and by whom? 011 Sub 54 SCL principles - Both the Bill and the explanatory notes state that development must minimise impacts on SCL where ever Origin Energy The explanatory notes (p.14) state that where development cannot avoid possible.
60 Environment, Agriculture, Resources and Energy Committee which Sustainable or or , provides guidance on how to appropriately interpret this section. Protecting Queensland’s strategic cropping land: A policy framework open-cut mining; or storing hazardous mine wastes, including, forwaste rock example, dumps. tailings dams, overburden or are provided for in Chapter 10 part 2 of the Bill. Acts Interpretation Act 1954 o o the carrying out impedes the landbecause from of being the cropped carrying for out, at thethe least land activity 50 can is years; not or be involves- restored to its pre-development condition; - - - was released forcumulative impact public may consultation beprovides prescribed on an in example a 23 of drilling regulationor August or to the wells cumulative be, 2010. under effects in a of Clause effect, which, resourceClause impede Act a 14 14(3)(a)(ii) it carried permanent defines from out impact. being specifically when on cropped developmentframework The the for provides has Bill land at a for least at specifically that 50 a permanent years. leveldevelopments, or assessing a or temporary like density impact. the which, Chapter subsidence,temporary 3 impacts or of will permanent the of Bill impact bedevelopments sets on development considered to out SCL. the manage on when The or Bill assessing prevent SCL. (clauses those whether 98 impacts. and a 99) Impacts If allows development for these from conditions will conditions to are underground have be not imposed a resource complied on with, it may be an Consequential amendments to thePlanning Sustainable Act 2009 Planning Regulation 2010, for the purpose of the Development is defined in the BillSection to 38 include of both the SPA andEach resource Act developments. should be read in its own context. The purposes of the Billthe provided for impacts in of clausegenerations. 3 development are to on protectClause land that 14 that (1) is land; provides highly that suitable andland if carrying for – preserve cropping; out manage development the on SCL productivity or potential capacity SCL has of a that permanent impact land on the for future Any of the three componentswould of clause be 14 permanent (1) under willcropping therefore (ie the establish it definition a could permanent ofmatter be impact. whether 14 less For the development than (1) impediment that 50 is (b)has legal years). or or Further, no physical. 14 (c) physical (2) This it impactpermanent provides means on does that that impact. under the not for 14 land, subsection The matter (1)permanent (14) but (a), how reference even (1) alienation, prevents when many (a) to page cropping a years it development 16 for 50 does it of 50 not years impedes years, in would also Clause be 14 considered (1) to have (a) a (i) is consistent with the definition of DERM comments Permanent impact or temporary impact - No evidence that longwall mining does not permanently impact SCL Development - Section 13 has aSPA. Given definition the for obvious "development" interactionthis between which difference the differs two in from piecesconfusion. meaning of that legislation, for in a criticalWhen development term has a could permanent create impact or unnecessary temporary impact – Definition of permanent impact failsand to social consider capital the to contribution the ofability human productivity of equation farmers eg to CSGstick crop wells around. for may 30-40 Soil impede alone years willRemove and not words no grow crops. incentive ‘for forprovide at farmers protection for to least human and 50 social capital. years’ from definition of permanent to Section/Initiative/comment Comment/key point SCL, alternative methods such asaccess directional a drilling could resource beexplanatory adopted and notes to be minimisemay amended impacts. to not acknowledgelimitations. be Origin that directional requests technically drilling thatIdentified appropriate permanently the impacted land in - Section some 12 describes areas "identifieddecided due permanently under section impacted geological 98(1)(a)(ii) land"which or as development the "...land will PlanningSCL.". have Act a as SPA being permanent doesn'tamendments land impact do to on on SPA that SCL proposedthe or or at draft this SPP? potential this a round point about in way of time. referring Are to consequential Paul Murphy Rebecca McNicholl Council Moreton Bay Regional Council Moreton Bay Regional Submitter 014 Sub 14 014 Sub 10 013 Sub 27 012 Sub 27 Cl.
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2 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point offence under the Act on which the authority was issued (e.g. Environmental Protection Act 1994). Clause 99 allows the chief executive to require a financial assurance from the development proponent as security to cover the costs of non-compliance with the conditions. The chief executive in deciding the amount of the financial assurance can consider factors such as the cost of restoring the land. 014 Sub 17 When a development has permanent impact or temporary impact - Clause 14 defines when development has a permanent or temporary impact. Chapter 3 of the Bill sets out the Jimbour Longwall mining creates subsidence and subsidence is unacceptable on framework for assessing the impacts of development on SCL. Impacts from underground resource Action Group a floodplain. Against the intent of the Bill as most of Protection area is on developments, like subsidence, will be considered when assessing whether a development will have a floodplain. temporary or permanent impact on SCL. The Bill (clauses 98 and 99) allows for conditions to be imposed on developments to manage or prevent those impacts. These conditions may include conditions requiring the applicant to restore SCL to its pre-development condition. If these conditions are not complied with, it may be an offence under the Act on which the authority was issued (e.g. Environmental Protection Act 1994). Clause 99 allows the chief executive to require a financial assurance from the development proponent as security to cover the costs of non-compliance with the conditions. The chief executive in deciding the amount of the financial assurance can consider factors such as the cost of restoring the land. 014 Sub 18 When development has a permanent or temporary impact - Clause 14 (1) (c) is consistent with page 9 of Protecting Queensland’s strategic cropping land: A policy QER Pty Ltd. Remove open cut mining as an automatic permanent impact. Claim that framework which was released for public consultation on 23 August 2010 which stated that “examples of high- can restore using back filling and careful restoration of top soil. impact developments that may permanently affect SCL include open-cut, long-wall mining, underground coal gasification and large water storage ponds. These activities can result in long-lasting changes to the soil caused by new construction, extensive excavation, subsidence or contamination of land.” The Bill’s provisions in regard to the definition of permanent impact are clear and provide regulatory certainty for proponents and decision-makers. 014 Sub 21 Definition of permanent impact - Clause 14 (1) (c) is consistent with page 9 of Protecting Queensland’s strategic cropping land: A policy Xstrata Coal To exclude a land use, eg. Open-cut mining, without regard to potential or framework which was released for public consultation on 23 August 2010 which stated that “examples of high- actual impacts is: contradictory to the Precautionary Principle; impact developments that may permanently affect SCL include open-cut, long-wall mining, underground coal inconsistent with current approaches to impact assessment under the gasification and large water storage ponds. These activities can result in long-lasting changes to the soil caused Environmental Protection Act 1994; at best, based on anecdotal evidence by new construction, extensive excavation, subsidence or contamination of land.” of current open-cut mine rehabilitation practices and outcomes; a disincentive to improve current rehabilitation practices and outcomes. The Bill’s provisions in regard to the definition of permanent impact are clear and provide regulatory certainty for Recommendation: Delete this section. proponents and decision-makers. 014 Sub 23 Permanent or temporary impacts - Other legislation is in place to regulate the impacts of development on water supplies including the Water Act Property Supports permanent and temporary impacts to be defined in legislation. 2000 which addresses access to groundwater supplies and the Environmental Protection Act 1994 which Rights Suggests addition of impacts to aquifers addresses environmental harm caused to groundwater supplies. Australia 014 Sub 25 When development has a permanent impact or temporary impact - Clause 14 defines when development has a permanent or temporary impact. Chapter 3 of the Bill sets out the P.R. Ingram Underground mining cannot reasonably guarantee that subsidence will framework for assessing the impacts of development on SCL. Impacts from underground resource not impact on this land at some stage in the future. developments, like subsidence, will be considered when assessing whether a development will have a temporary or permanent impact on SCL. The Bill (clauses 98 and 99) allows for conditions to be imposed on developments to manage or prevent those impacts. These conditions may include conditions requiring the applicant to restore SCL to its pre-development condition. If these conditions are not complied with, it may be an offence under the Act on which the authority was issued (e.g. Environmental Protection Act 1994). Clause 99 allows the chief executive to require a financial assurance from the development proponent as security to cover the costs of non-compliance with the conditions. The chief executive in deciding the amount of the financial assurance can consider factors such as the cost of 62 Environment, Agriculture, Resources and Energy Committee , Protecting or or Statutory Instruments Act 1992 and which was released for public consultation on 23 Acts Interpretation Act 1954 ). Clause 99 allows the chief executive to require a financial assurance open-cut mining; or storing hazardous mine wastes, including, forwaste rock example, dumps. tailings dams, overburden or o o because of the carrying out, thethe land activity can is not or be involves- restored to its pre-development condition; the carrying out impedes the land from being cropped for at least 50 years; Environmental Protection Act 1994 - - - developments, like subsidence,temporary or will permanent impact bedevelopments on considered SCL. to manage when The orapplicant Bill assessing to prevent (clauses restore SCL whether 98 those to andoffence impacts. its a 99) pre-development under allows condition. development the If These for Act these conditions willallows conditions conditions on to the are may which have chief not be the executive include complied imposed a to with, authoritythe on conditions it require was costs may requiring a of issued be financial non-compliance the an (e.g. with assurance theThe Environmental from conditions. chief the Protection development executive Act proponent in 1994). asrestoring deciding Clause security the the 99 land. to amount cover of the financial assurance can consider factors such as the cost of Further, 14 (2) providesphysical. that for This subsection means that (14)prevents under (1) cropping 14 (a) for (1) it 50 (a),years does years, even in when not would Clause a matter also development 14 whetherQueensland’s be has (1) the considered strategic no (a) impediment to physical cropping (i) is have impact land:August on legal is a 2010. A the or Clause permanent consistent land, 14(3)(a)(ii) policy impact. with but specifically framework to provides the be, that The definition in a reference effect, cumulative of a to impact permanent permanent may 50 impact. alienation, be prescribed page in 16 aDrafting regulation of conventions are establishedwhich by are administered the by the OfficeClause of 14 Queensland defines Parliamentary Counsel. when developmentframework for has assessing a the permanent impacts ofImpacts or development from temporary on underground impact. SCL. resource Chapter developments,a 3 like development subsidence, of will will the have be Bill a considered temporaryThe sets when or Bill out assessing permanent (clauses whether the impact 98 on SCL. andimpacts. 99) These allows conditions for may conditionscondition. include to conditions be requiring imposed the on applicant developments to to restore manage SCL or toIf its prevent these pre-development those conditions are not(e.g. complied with, it mayfrom be the an development offence proponent under asexecutive the security to Act in cover on deciding the which the costs thethe amount of authority land. non-compliance of was with the issued the financial conditions.Clause assurance 14 The can chief defines consider when factors developmentframework such has as a for the permanent cost or assessing of temporary restoring impact. the Chapter 3 impacts of the of Bill sets development out the on SCL. Impacts from underground resource DERM comments restoring the land. SCL is regarded as a finiteClause resource 14 that (1) cannot provides be that recreated. land if carrying – out development on SCL or potential SCL has a permanent impact on the When development has a permanent impactNo or temporary Australian impact - examplesGordon of where Downsunderground subsidence mining cited has has failed. been aswhen Commercial looking rehabilitated. viability at rehabilitation an must options. beLongwall considered example mining should not ofrehabilitated. occur on Companies SCL where made until liableon it rehabilitation for the is surface. proven effects that Bonds of ofthe it must underground risk can be of mining be subsidence held be to dealt rehabilitate with tens in of the years future.How after the will activity? and the potential for any"exclusive" clarifying Regulation in to be its "inclusive"refers description). rather to than Yet storage of anotherto overburden of be or the set waste for rock criteria suchused dumps. in activities as A in threshold section a that needs lead-in 14 trigger.remove to The the potential section following for words 14 conflicting should (4): provisions be within "Notwithstanding that subsection section (1)," to When development has a permanent impactConcerns or about impacts temporary impact of subsidence - Section/Initiative/comment Comment/key point When development has a permanent impactSection or 14 temporary draws impact a - distinctionwhat, between what is by a "permanentextraordinarily impact" default, and long is fordefinition of an merely "permanent impactcriteria impact" temporary. that to in development be section The hascarrying 14 considered a out, 50 also permanent temporary.condition;". impact lists the year The if in There land "...because the should trigger"reasonably of trigger be cannot able the to is a be be restored"be reference as possible, restored in restoration at in this to thisclarity a context trigger due price will its to criteria always (can't the pre-development being rely use of on the subsection word (3)(b) "may" to in the provide lead-in that to subsection (3) Bendee FarmingLtd. Pty Sally Sullivan Moreton Bay Regional Council Submitter 014 Sub 32 014 Sub 29 014 Sub 27 Cl.
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4 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point 014 Sub 37 Limitations on the delivery of the purposes of the Bill - Clause 14 (1) provides that carrying out development on SCL or potential SCL has a permanent impact on the Queensland The definition of permanent impact outlined in clause 14 is stated as - land if – Farmers’ impeding the land from being cropped for 50 years. This time frame is far - the carrying out impedes the land from being cropped for at least 50 years; or Federation and seems without any justification. QFF has previously submitted that a - because of the carrying out, the land can not be restored to its pre-development condition; or more reasonable timeframe would be one generation (22 - 25years). - the activity is or involves- S14(1) - Cumulative impact is referenced in the Bill (Clause 14 1) a) but o open-cut mining; or the way in which it will be implemented as the policy framework intends is o storing hazardous mine wastes, including, for example, tailings dams, overburden or unclear. The Governments 2010 policy framework clearly highlighted that waste rock dumps. a loss in productivity of SCL would also be a trigger for planning decisions Any of the three components of clause 14 (1) will therefore establish a permanent impact. For development that or development conditions to be applied. It is QFF’s recommendation that would be permanent under the definition of 14 (1) (b) or (c) it does not matter how many years it impedes this principle be specifically included in Clause 14 of the Bill. cropping (ie it could be less than 50 years). Further, 14 (2) provides that for subsection (14) (1) (a) it does not matter whether the impediment is legal or physical. This means that under 14 (1) (a), even when a development has no physical impact on the land, but prevents cropping for 50 years, would also be considered to have a permanent impact. The reference to 50 years in Clause 14 (1) (a) (i) is consistent with the definition of permanent alienation, page 16 of Protecting Queensland’s strategic cropping land: A policy framework which was released for public consultation on 23 August 2010. Clause 14(3)(a)(ii) specifically provides that a cumulative impact may be prescribed in a regulation to be, in effect, a permanent impact. 014 Sub 39 50 year timeframe – Canegrowers The definition of permanent impact outlined in clause 14 as - impeding the land from being cropped for 50 years - is too long a time frame. This should be reduced to a generational timeframe. 014 Sub 41 When development has a permanent impact or temporary impact - The Bill’s provisions in regard to the definition of permanent impact are clear and provide regulatory certainty for Queensland In general the QLS is opposed to definitions which have a vastly different proponents and decision-makers. The reference to 50 years in Clause 14 (1) (a) (i) is consistent with the Law Society meaning from the ordinary meaning of the words in everyday speech as definition of permanent alienation on page 16 of Protecting Queensland’s strategic cropping land: A policy this tends to create confusion and is misleading. For example in the framework which was released for public consultation on 23 August 2010. definition of ‘permanent impact’, some of the legal fictions which are likely Establishing criteria in clause 14 (3) for determining what may be subject of a regulation, and the process of to be confusing are: requiring Governor in Council approval to making a regulation, satisfy the requirements of section 4(4) of the The definition of 50 years as ‘permanent’. Fifty years would be Legislative Standards Act 1992. considered by most people to ne ‘long-term’ but not ‘permanent’. Any activities in the future proposed to be prescribed by regulation are likely to require a RAS and associated The confusion between merely ‘impeding’ cropping and actually stopping public consultation process. Any regulation will also be subject to Parliamentary scrutiny. Clause 14 (1) (c) is it. In normal speech, an impediment can be a surmountable obstacle. consistent with page 9 of Protecting Queensland’s strategic cropping land: A policy framework which was Deferring the further definition of this issue to a future regulation is of released for public consultation on 23 August 2010 which stated that “examples of high-impact developments concern under S4(4) of the Legislative Standards Act 2011, as it would that may permanently affect SCL include open-cut, long-wall mining, underground coal gasification and large appear to be a fundamental concept in the Bill. water storage ponds. These activities can result in long-lasting changes to the soil caused by new construction, It is questionable whether open-cut mining is necessarily either a extensive excavation, subsidence or contamination of land.” permanent or 50 year impact on the future ability to undertake cropping, given recent developments in rehabilitation science. (Sub 41, p.3) 014 Sub 42 When development has a permanent impact or temporary impact - Clause 14 (3) allows for a regulation to be prescribed to provide further detail of what level or density for a Queensland S14(1) – the definition of permanent impact (preventing the land from temporary activity is taken to be a permanent impact. Establishing criteria in clause 14 (3) for determining what Resources being cropped for at least 50 years) includes an example which calls out may be subject of a regulation, and the process of requiring Governor in Council approval to making a Council both the (a) density of drilling or wells and (b) cumulative impacts. Both of regulation, satisfy the requirements of section 4(4) of the Legislative Standards Act 1992. Any activities in the these will suggest approaches for farmers to argue that their land is future proposed to be prescribed by regulation are likely to require a RAS and associated public consultation permanently impacted. QRC is concerned that the section gives the process. Any regulation will also be subject to Parliamentary scrutiny. Clause 14 (1) (a) is consistent with the 64 Environment, Agriculture, Resources and Energy Committee examples of high- examples of high- Protecting Queensland’s strategic cropping land: A policy Protecting Queensland’s strategic cropping land: A policy Protecting Queensland’s strategic cropping land: A policy which was released for public consultation on 23 August 2010 which stated that “ which was released for public consultation on 23 August 2010 which stated that “ which was released for public consultation on 23 August 2010. that the land is SCL and include, or be accompanied byif a the copy land of is a potential SCL relevant information – notice that about the a applicant has elected to treat this part as applying to the applicant as Clause 14 includes bothclause SCL 84. and potentialClause SCL 84 to provides that allow the for application must the state Bill – tovalidation provide decision flexibility or a to registry record developers (SCL); under or if the land were SCL. This provides applicants withvalidation on-ground) an for option the to purposes accept of assessing the the trigger proposed map development as under Chapters SCL 3 (rather and than 4 incurring of the expense of impact developments that maygasification and permanently large affect water storage SCL ponds.by include new construction, These open-cut, extensive activities long-wall excavation, can subsidenceThe result mining, or in Bill’s underground contamination long-lasting provisions of changes in coal land.” to regardproponents the to and soil the decision-makers. caused definition of permanentClause impact are 14 clear and (1) provideframework regulatory (c) certainty for is consistentimpact developments with that page maygasification 9 and permanently large affect of water storage SCL ponds.by include new construction, These open-cut, extensive activities long-wall excavation, can subsidence result mining, or in underground contamination long-lasting of changes coal land.” toThis the soil clause caused relates to carryinglocated out on development land on other SCL than orclause SCL potential 14 or SCL, if potential and it SCL. is would That located is, notEstablishing on a apply criteria land storage if other in dam the than would activity clause SCL notrequiring was or 14 be Governor potential a (3) SCL. in permanent for impact Council under determiningLegislative approval Standards what Act to may 1992. making be a subject regulation, of satisfy a theAny regulation, requirements activities and of in the section the process 4(4)public future of consultation of proposed process. to the Any be regulationEstablishing prescribed will by criteria also regulation be in subject are clause torequiring likely Parliamentary 14 Governor scrutiny. to (3) in require for Council aLegislative determining RAS approval Standards what and Act to may 1992. associated making be a subject regulation, of satisfy a theAny regulation, requirements activities and of in the section the processpublic 4(4) future of consultation of proposed process. to the Any be regulation prescribed will by also regulation be subject are toClause likely Parliamentary 100 scrutiny. to (1) (b) require provides aexecutive for RAS case must and by consider associated case assessment whethertemporary where impact the in on carrying making the an land. out SCL of protection decision, the the resource chief activity will have a permanent impact or a DERM comments definition of permanentframework alienation on page 16 of Clause 14 (1)framework (c) is consistent with page 9 of potential SCL in this section should be deleted. regulations, whichprescribing may follow activitiesrecommends the that based this lead sectioncategories should on of be of activity deleted. should The at S14(1)(c)(i) assumptionsregulation. the ability “Permanent least to impacts” and require should prescribe not legislative in change, (ii)basis any not case of science. by be in whether determined on individualimpact the QRC developments on will SCL in orimpacts fact across whether broad have categories SCL a of can activity.When permanent (Sub development in 42, has Att fact a p.6) permanent be impactS14(4)(a)(i) or The restored temporary definition – impact of - not permanentalso impact deemed includes potential not SCL. just SCL,ambiguity This but into change the in applicationrisks of the for the definition proponents. Act, QRC introduces whichshould states introduces significant be that administrative made the at definition athe of point scope permanent in of impact time the and land not covered. be QRC subject to recommends later that changes all in references to mine waste, “including forrock dams”. example This tailings would dams, seemexample to overburden sorting preclude or and any storing waste effortimpact topsoil. at is The rehabilitation on section – the for doesn’toverburden SCL, specify for that for the example ifpermanent storage a impact? conveyor on QRC belt recommendsAtt a is the p.4) used section non-SCL to be remove deleted.When site, development (Sub has is 42, a permanent impactS14(3) this or temporary A impact intended - regulationdeemed as can to a prescribe causearbitrary an a rules permanent activity regarding impact. or theactivities This impact regardless development on of allows that their SCL the actualbe by is impact. introduction deleted. certain (Sub QRC of 42, developments recommends Att the or p.4) When section development has a permanent impactS14(3)(a) or temporary - impact - this section gives very broad powers to subsequent Section/Initiative/comment Comment/key point regulator broad powers tothresholds. apply SCL It without the ismentioned benefit example of is not given definitions effect. or clear (SubWhen 42, development Att where has p.4) a permanent in impactS14(1) or (c) the temporary impact (i) - Actactivities - “deemed” the the to definition cumulative beimpact of permanent impact or permanent impacts capacity impact – tohardwire regardless includes in restore of a an SCL. any range assumption actual Forfaith based of in a on the existing process science practice based orbe suggests the deleted. on a process (Sub science lack 42, of Att of SCL. to p.4) QRCWhen development recommends has the a section permanent impactS14(1) or (c) temporary (ii) impact - - the definition of permanent impact includes storing any Council Queensland Resources Queensland Resources Council Queensland Resources Council Queensland Resources Council Queensland Resources Council Submitter 014 Sub 42 014 Sub 42 014 Sub 42 014 Sub 42 014 Sub 42 Cl.
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6 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Bill. 014 Sub 42 When development has a permanent impact or temporary impact - Establishing criteria in clause 14 (3) for determining what may be subject of a regulation, and the process of Queensland S14(4)(a)(ii) - this allows the introduction of arbitrary rules regarding the requiring Governor in Council approval to making a regulation, satisfy the requirements of section 4(4) of the Resources impact on SCL by certain developments or activities regardless of their Legislative Standards Act 1992. Council actual impact. QRC recommends the section be deleted. (Sub 42, Att p.4) Any activities in the future proposed to be prescribed by regulation are likely to require a RAS and associated public consultation process. Any regulation will also be subject to Parliamentary scrutiny. 014 Sub 42 50 year timeframe – Clause 14 (1) provides that carrying out development on SCL or potential SCL has a permanent impact on the Qld Murray - QMDC has repeatedly suggested a 50 year timeframe is too long and is land if – Darling therefore not an appropriate measure of time for the following reasons: - the carrying out impedes the land from being cropped for at least 50 years; or Committee The average age of landholders is 59 years however average length of - because of the carrying out, the land can not be restored to its pre-development condition; or Inc. land ownership (as per 2006 census) is 15 years. A generation is - the activity is or involves- considered 25 years. Most State Government planning cycles are 5 years o open-cut mining; or – some for example Water Plans are 10 -15 years at the most o storing hazardous mine wastes, including, for example, tailings dams, overburden or Delbessie Lease renewals are done to 30 years. waste rock dumps. A 50 year timeframe therefore does not mirror key factors that address Any of the three components of clause 14 (1) will therefore establish a permanent impact. land use impacts and restoration of SCL. For development that would be permanent under the definition of 14 (1) (b) or (c) it does not matter how many years it impedes cropping (ie it could be less than 50 years). Further, 14 (2) provides that for subsection (14) (1) (a) it does not matter whether the impediment is legal or physical. This means that under 14 (1) (a), even when a development has no physical impact on the land, but prevents cropping for 50 years, would also be considered to have a permanent impact. The reference to 50 years in Clause 14 (1) (a) (i) is consistent with the definition of permanent alienation, page 16 of Protecting Queensland’s strategic cropping land: A policy framework which was released for public consultation on 23 August 2010. 014 Sub 50 This section identifies the meaning of development which is considered to For conditioning of temporary activities, Clause 81 provides that a regulation may make a code about how Local have a temporary impact on land. Specifically in section 14(4)(b) of the resource activities may be carried out on SCL or potential SCL. However, the standard conditions code can not Government Bill, it is development prescribed under a regulation. The Association permit a resource activity to be carried out on the SCL or potential SCL in a protection area if the carrying out Association of assumes underground pipelines will be identified in any associated has a permanent impact on the land. Queensland regulations as having a temporary impact on Strategic Cropping Land, Ltd. based on the information previously provided through the Strategic If the carrying out impedes the land from being cropped for at least 50 years; or because of the carrying out, the Cropping Land Stakeholder Advisory Committee. However, the LGAQ land can not be restored to its pre-development condition, clause 81 provides that the carrying out of the considers this type of development not to be temporary in nature as development has a permanent impact. pipelines are not considered to have an asset life less than fifty years nor are they considered to be able to be constructed without “permanently alienating” the soil in which they are built. The LGAQ supports a conservative approach taken by the State when pipelines are proposed until such time as clear evidence is available to demonstrate the full scope of their impacts. Further, it is suggested that where ever possible, existing pipelines and their associated easements should be utilised for the transport of gas and petroleum as opposed to the construction of new pipelines. (Sub 50, p.2) 014 Sub 52 When development has permanent impact or temporary impact - Clause 14 (1) provides that carrying out development on SCL or potential SCL has a permanent impact on the Environmental Time limit in clause 14(1)(a) be amended to the length of tenure for the land if – Defenders resource activity that is first applied for or, in the alternative, no more than - the carrying out impedes the land from being cropped for at least 50 years; or 66 Environment, Agriculture, Resources and Energy Committee or . Therefore, CSG which was released for public Petroleum and Gas (Production and Safety) Act 2004 and . Any activities proposed to be prescribed by regulation are likely to require a open-cut mining; or storing hazardous mine wastes, including, forwaste rock example, dumps. tailings dams, overburden or o o Petroleum Act 1923 Protecting Queensland’s strategic cropping land: A policy framework because of the carrying out, thethe land activity can is not or be involves- restored to its pre-development condition; - - Clause 17 of theunder Bill the provides that adevelopment will resource be activity assessable under includes the activities Act. carried out under an authority issued Any of the three components of clause 14 (1) will thereforeFor establish development a that permanent would impact. beyears it permanent impedes under cropping the (ie definition it could of be 14 less (1) than (b) 50Further, or years). 14 (c) (2) it provides doesphysical. not that matter for how subsection many (14) (1) (a) itThis does means not that matter under whethercropping 14 for the (1) 50 impediment (a), years, even would is also when legal be a considered or development to have has aThe no permanent reference physical impact. to impact 50 on years16 the in land, of Clause but 14 prevents (1)consultation (a) on (i) 23 August is 2010. consistent with the definition ofClause permanent alienation, 14(3)(a)(ii) page specifically provideseffect, a that permanent a impact. cumulativeClause impact 14 may (3) be allowstemporary prescribed activity for in is a taken a to regulation be regulation to a to permanent be impact. be, prescribed in Establishing to criteria provide in further clause detailrequiring 14 Governor of (3) in what for Council level determiningLegislative approval or Standards what to Act density may making 1992 for beRAS a subject a and regulation, associated of satisfy public a consultation the process. regulation, requirements and Any of the regulation section will process also 4(4) of be of subject the to Parliamentary scrutiny. DERM comments s.14(1)(a) gives an permanent impact Resource Act and resource ActIt activity appears Coal Seam Gas development will be allowed everywhere, as a by ‘level or density’as and how the such average anclarification life-span example of what of applies is to a meant CSG bySection CSG this activities example. 14 well is containsactivities 30 to a years. be regulation-makingpower deemed Origin as provision could requests having have whichregulation-making permanent impacts. signficant allows provision ramifications. should for wishes If be in utilised, this removed. the Originpermanent future submits impacts, to If this thatamendment prescribe the should of this / the Government be Act deemAlternatively, dealt which certain would with there be activities by subject shouldreview to as way be and full having legislative of appeal a scrutiny. power a rights, legislative to proposed and process instances aimpede where that the provision land the provides from limiting being proposed for the croppedWhen for prescribed development exercise at has activity least a of 50 permanent will years. impact the or in temporary impact fact – clause 14(1)(a) is currently draftedbegan there is as an unacceptable a riskbecomes that temporary what permanent impact following (withtenure. a conditions We successful requiring cannotcompanies. rehabilitation) application know We to the extend cantimeframe fixed future the to only the business length eval-uatean of dec-isions alternative, the no the resource of more tenure than impacts first 30 resource applied years for on or, as SCL against a When development has a permanent orIn temporary impact relation - toexample of what ‘drilling constitutes orat wells under a a level resource or Actfrom density being carried which, cropped out or for on the at the cumulative least land effects 50 of years.’ Origin which, is impede unsure it what is meant Section/Initiative/comment Comment/key point 30 years. The identification ofor permanent potential and temporary SCL impactspermanent is on impact SCL on the SCL heart orare potential of SCL in concerned this clause 14(1)(b) Bill. byrecommend and (c). that We the We the support time 50 thefor limit the definition year here resource be of time activity amendedmore than that to period 30 is the years. first The in lengthfor Committee applied of will clause for tenure resource be aware or, 14(1)(a). tenures that inpermanence it We the is to of highly alternative, unusual extend no impactsFurther, beyond we note on 30 that resource SCLat years. tenures some may against Why unknown be time extended some evaluateermined in by the the longer the to applicant future. account If time the for period? 50 year post-operation period efforts has been to det- rehabilitate SCL, as Sub 16 FriendsFelton of Origin Energy Submitter Office 014 & 017 014 Sub 54 Cl.
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8 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point result of the definition of 'permanent alienation' of the land. Clause 14(3)(a)(ii) specifically provides that a cumulative impact may be prescribed in a regulation to be, in effect, a permanent impact. The Bill specifically provides an example of drilling or wells under a resource Act carried out on the land at a level or density which, or the cumulative effects of which, impede it from being cropped for at least 50 years. 014 & Sub 28 Drafting - Section 14 (c)(ii) provides that an open cut mine is an activity that will have a permanent impact to the land. The 078 P&E Law Interaction between clauses 14 and 78 exempts a resource activity for a effects throughout the Act of this provision are: Any activity that is considered or involves open cut mining will resource authority as being a permanent or temporary impact – outcome always be considered to have a permanent impact on SCL, irrespective or any evidence to the contrary or that the Bill does not protect land from resource activity contrary arguments that may be posed. The activity cannot be regulated under a standard condition code. The activity will need to demonstrate exceptional circumstances before it can be undertaken on land that is SCL or potential SCL in a Protection Area. Otherwise this provision has no significant effect on the activity and any applications for these developments will still need to meet the requirements of the Act. Section 78 provides an exemption to the offence provisions in sections 76 and 77. Section 76 and 77 make it an offence to conduct any activity on SCL or potential SCL that will have either a permanent or temporary impact. Reading section 76 with section 14 (c)(ii) in effect states that you cannot conduct open-cut mining on SCL or potential SCL. If you do you will be penalised accordingly. Therefore the effect of section 78 (1)(b) is to provide an exemption from the offence, not the requirements of the Act. Reading the provision together has the effect that a developer carrying out a resource activity (s17 (2)) that is approved under a resource authority (s18), will not be committing an offence. Therefore reading section 78 with section 14 (c)(ii) has the effect of saying that where an open cut mine has a mining tenement, it may permanently impact SCL or potential SCL, without committing an offence provided it is done in accordance with the mining tenement. 016 Sub 27 Planning Act, IDAS and development approvals - Legislative provisions need to be read in the context of the entire framework. As clause 16 refers to Chapter 6 of (2) Moreton Bay The definition of IDAS in section 16(2) refers to approval processes for the Planning Act, legislative interpretation requires the user to refer to the Planning Act to define the term Regional "development". Since the term "development" has a different meaning in referenced. Council this Bill to that in SPA, which meaning to be used in this context is unclear.
017 Sub 10 Resource Act and Resource Act activity - Other legislation is in place to regulate the impacts of development on water supplies including the Water Act Rebecca Protection of productive capacity requires the protection of water 2000 which addresses access to groundwater supplies and the Environmental Protection Act 1994 which McNicholl resources. CSG impacts on ground water resources uncertain and could addresses environmental harm caused to groundwater supplies. CSG development will be assessable under the cause significant decline in SCL productivity. Act. Clause 17 of the Bill provides that a resource activity includes activities carried out under an authority Amend Bill to prevent CSG development’s in Qld’s most productive issued under the Petroleum Act 1923 and Petroleum and Gas (Production and Safety) Act 2004. The Bill’s agricultural zones. purpose provided for in clause 3 is to protect land that is highly suitable for cropping and manage the impacts of development on that land. 017 Sub 32 Resource Act and resource activity - CSG development will be assessable under the Act. Clause 17 of the Bill provides that a resource activity Bendee CSG should be assessed under the SCL legislation due to the risks to includes activities carried out under an authority issued under the Petroleum Act 1923 and Petroleum and Gas Farming Pty groundwater and soil toxicity. (Production and Safety) Act 2004. The Bill’s purpose provided for in clause 3 is to protect land that is highly Ltd suitable for cropping and manage the impacts of development on that land. Other legislation is in place to regulate the impacts of development on water supplies including the Water Act 2000 which addresses access to groundwater supplies and the Environmental Protection Act 1994 which addresses environmental harm caused to groundwater supplies. 017 Sub 37 Resource Act and resource activity - Clause 17 of the Bill outlines existing resource Acts including the Mineral Resources Act 1989, Petroleum Act Toowoomba Will the resource Acts detailed in s17 be updated to reflect the Bill and 1923 and Petroleum and Gas (Production and Safety) Act 2004, the Geothermal Energy Act 2010 and the Regional that the public be notified and consulted. Geothermal Exploration Act 2004 and the Greenhouse Gas Storage Act 2009. The August 2010 policy Council framework proposed that the following legislative and planning instruments would be developed: a new Act 68 Environment, Agriculture, Resources and Energy Committee for SCL to address ; and amendments to Mineral Resources Act . Therefore, underground Sustainable Planning Act 2009 Sustainable Planning Act 2009 Petroleum and Gas (Production and Safety) Act 2004 and amendments will require assessment of the impact on SCL and will condition tenure accordingly. ”. Petroleum Act 1923 , 1989 mining and coal seam gas developmentsClause are assessable 17 under provides the Bill. throughout definitions the Act. of the terms “Resource Act” and “resource activity”. These terms are used Clause 18 defines ‘resource authority’—applies to all tenures under the resource acts listed in clause 18. Clause 20 is consistent withimpose Chapter conditions 3, on Part either 4 or which bothThese provides of clauses for the are environmental the consistent authority chief with oreg executive resource the to page authority August decide 7 for 2010 whether the “ or framework resourceFurther not which activity. conditions to stated for that restoration conditionsAct and would 1994 other be environmental on matters tenure Access will to continue land to by applicants be for, addressed or under holders of the resource EP authorities is a matter relevant to the Resources Acts. DERM comments specifically for SCL; aSCL new State requirements planning for policyexisting development under resources the assessable legislation under toChapter recognise 10 of the the requirements Bill makes ofClause the the 17 necessary of new amendments to the SCL other Bill Act legislation. includes for activities resources carried developments. out under an authority issued under the As the SCL criteriaEnvironment and is resource governed management, by and the this land Bill Access through legislation the Department of environmental authorities. Inauthority, regard and the to assessmentdetermination, this of and the the reference strategic assessment of of croppingfor the lands the determination, strategic criteria cropping there resource for lands appears criteria and to access be legislation. some2010, confusion Post regarding the the timing legislative resourceCompensation amendments Agreement authority from with October is theworks pertaining landholder bound to to their toon undertake resource authority. negotiate exploratory the These a agreements conditionsoperation cover Conduct constructs off on regarding and which timing,the biosecurity their ongoing and farming access theaccessing practice application will the of in property, be amongst regardsthe other governed, to criteria. land the and It to resource appears the granted assess that tenure prior access against holder to to thebefore the strategic the negotiation finalization cropping of this of land agreement has this criteria been undertaken. authority, can and be therefore comes testing or benchmarking on exploration– so tenure that that the has land not accessResource provisions been authority do - granted not apply. (SubS18(c), 42, (d), Att and p.6) (e) -tenures it is or unclear if just thespecify definition production the is specific intended tenures. tenures to that QRC apply applySource to – authority suggest all eg - ML, that PL. (SubS20(b) the 42, and Att Act p.6) (c) should -are this to drafting, be when applied, readcombination could with in see S22(b) concert tenures will withthe have or how Act unintended EAS conditions should consequences. conditioned apply QRA (or(Sub state only 42, both). Att to The p.7) the EASource authority and - that S20(b)Agforce should be is deleted. concernedreference about t the the resource authority, definition as of well as the development approvals “source and authority” in Section/Initiative/comment Comment/key point Underground mining andstrategic cropping coal land policy seam gas shouldResource be Act and included resource activityS17(2)(b) - in - the givingexploration the tenure SCL which Actadministration has the of not the ability yet ActQRC to been and is regulate granted may concerned that well activities will the have on complicate proponent unintended may the an consequences. be required to undertake SCL Agforce Resources Council Queensland Resources Council Queensland Resources Council Queensland LindsayAvriel Tyson & Submitter 020 Sub 44 020 Sub 42 018 Sub 42 017 Sub 42 017 Sub 40 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point is governed by the Department of Employment, Economic Development and Innovation, there appears to be some confusion regarding the timing of these requirements. Agforce has raised this with both Departments for further clarification, but to date has received no reply. (Sub 44, p.3). 020, Sub 54 Transitional provisions - The August 2010 policy framework released by the Government provided that the new SCL legislation would 022 & Origin Energy Origin supports the Government’s intent to provide transitional apply to all new and undecided resources development applications. It also provided that amendments to 272 arrangements for projects which are well advanced such as the APLNG resources legislation would- Project. However, Origin is concerned that the transitional arrangements “require assessment of the impact on SCL and will condition tenure accordingly. Further conditions for may be short-lived given that S.20, when read in conjunction with S.22(b) restoration and other environmental matters will continue to be addressed under the Environmental Protection indicates an application for an amendment of an Environmental Authority Act 1994”. can trigger the SCL assessment criteria in relation to the project. Clause 22 (1)(b) of the Bill effectively provides that the Bill applies to applications for amendment, renewal or re- For example, APLNG is seeking to amend the EA which was issued on grant of a resource authority, environmental authority or development approval. This is consistent with the 10 June 2011 for its Condabri development which forms part of the Government’s policy announced in August 2010. However, DERM has recommended amendments to the Project. If Origin is interpreting these clauses correctly, the SCL criteria Explanatory Notes to clarify that the assessment will only relate to the matters applied for in the application. will apply to the Condabri development. This combined with the weaker Assessment would not be required where no new or amended Environmental Authority is required under the test of what constitutes a cropping history, increases the regulatory Environmental Protection Act 1994. For example, if a resource development submits an application for an burden on project activities. It also undermines the Minister’s statement amendment to the environmental authority to increase the level of discharge into a local waterway, the when introducing the Bill on 25 October 2011 that ‘these arrangements application will be assessed to determine if the proposed amendments will have any impacts on SCL or potential manage sovereign risk.’ SCL. Origin submits that, at a minimum, there should be an exemption for applications to amend an existing environmental authority where the If there are no impacts, the chief executive can make a decision to that effect under section 90 of the Act. In this proposed amendment / change will not result in a material increase in instance, the assessment would not consider the entire resource development activities. adverse impacts on strategic cropping land above those already permitted under the existing environmental authority. 022 Sub 21 Triggers for SCL – ‘an amendment, a renewal and a re-grant’ - The August 2010 policy framework released by the Government provided that the new SCL legislation would Xstrata Coal This is greatly concerning as any amendment to an Environmental apply to all new and undecided resources development applications. It also provided that amendments to Authority of a resource tenure, which occurs frequently, would allow resources legislation would- repeated application of the SCL Act. Potential ramifications include “require assessment of the impact on SCL and will condition tenure accordingly. Further conditions for retrospective conditioning, never-ending assessment, and lack of restoration and other environmental matters will continue to be addressed under the Environmental Protection certainty for Authority holders. Act 1994”. Clause 22 (1)(b) of the Bill effectively provides that the Bill applies to applications for amendment, renewal or re-grant of a resource authority, environmental authority or development approval. This is consistent Recommendation: Delete this section. with the Government’s policy announced in August 2010. However, DERM has recommended amendments to the Explanatory Notes to clarify that the assessment will only relate to the matters applied for in the application. Assessment would not be required where no new or amended Environmental Authority is required under the Environmental Protection Act 1994. For example, if a resource development submits an application for an amendment to the environmental authority to increase the level of discharge into a local waterway, the application will be assessed to determine if the proposed amendments will have any impacts on SCL or potential SCL. If there are no impacts, the chief executive can make a decision to that effect under section 90 of the Act. In this instance, the assessment would not consider the entire resource development activities. 022 Sub 42 References for applications and applicants - The August 2010 policy framework released by the Government provided that the new SCL legislation would Queensland S22(b) - the interaction of the broad definitions in S20 and S22 could apply to all new and undecided resources development applications. It also provided that amendments to Resources mean that any minor amendment to EA conditions could trigger a full resources legislation would- Council review of SCL status with subsequent conditioning of tenure and EA. The “require assessment of the impact on SCL and will condition tenure accordingly. Further conditions for intent of the policy was that SCL assessment occurs at the time of restoration and other environmental matters will continue to be addressed under the Environmental Protection 70 Environment, Agriculture, Resources and Energy Committee authority to increase the level of discharge into a local waterway, the . For example, if a resource development submits an application for an ”. Clause 22 (1)(b) of the Bill effectively provides that the Bill applies to applications for amendment, and Management Areas.highest Land protection within by the the new legislation. The Protection Management Areas Area that includesindustries meets and many the so regions will SCL thatBill have criteria is are new consistent will important with development this be to assessment announcedThe obligations policy. Queensland's afforded decision making compared cropping the framework to and provided current in horticultural the arrangements. bill The is consistent with previous government announcements. Environmental Protection Actamendment 1994 to theapplication will environmental be assessed toSCL. determine if If the there proposed are amendments noIn will impacts, this have the instance, any the chief impacts assessment executive on would SCL canThe not or make consider August potential a the 2010 decision entire to resource policyapproximately that development 4% activities. framework effect of under the released section State.through by 90 On Protection of the 31 Areas the May Government and Act. 2011, aable included the Management Government to draft Area. announced Confirmed trigger be implementation and ofprotection maps permanently potential the areas SCL which impacted SCL approximately in policy 1% covered by protection ofopen-cut areas the development State will mining except is not is identified be in a asnew potential limited permanent SCL. impact exceptional development on Clause circumstances. 14 SCL assessmentassessable For of or in the obligations the potential Bill the provides SCL. two managementimpacts compared that For on area the SCL. to and management Any area will temporary currentand the impacts be any arrangements. on Bill required SCL provides permanent to will Open-cutGovernment policy. need avoid impacts to mining SCL on be and fully willOn SCL restored wherever a to be number will possible its of minimise pre-development occasions, needannouncement condition including its of to with protection the and be releaseassist management of the mitigated. areas public the to on SCL understand Policy 31 theofficial framework The May policy maps on that framework. 2011, Bill will Reference 23 the within be August Government the released is 2010 once Bill has and the of consistent released the Bill maps maps has and with been map to passed titles announced by refer Parliament. to the Impacts from underground resource developments,a like subsidence, development will will be considered haveimposed when on assessing a whether developments temporary to orannounced manage policy. permanent or impact prevent on those impacts. SCL The and Bill the is Bill consistent allows with forOn the 31 conditions Government’s May to 2011, be the Queensland Government announced the implementation of the policy through Protection DERM comments Act 1994 renewal or re-grant of awith resource the authority, Government’s environmental policy authority announcedthe or in Explanatory development Notes August approval. to 2010. This clarifyAssessment is However, that consistent would the DERM not assessment has will recommended be only amendments required relate to where to the no matters new applied or for amended in the Environmental application. Authority is required under the the process applyinghard to to follow. the range of sub-decisions are confusing and Chapter 2, Part 1 “Maps, zones,Cotton criteria and Australia areas”- contendscompanies to that attempt the toopen circumvent cut focus the SCL on legislationoperations the by to moving soil, underground from operationsand allows pillar. such (Sub mining as 20, p3) long-wallChapter mining 2, Part or 1 bord “Maps, zones,Cotton criteria and Australia areas”- Management is Zones. Cotton opposed Australiahas to been strongly identified argues the SCL thatp4) should all segregation be land within of that the Protected Protected Zone. (Sub and Identifying Strategic 20, Cropping Land - The legislation requiresdepartment in a relation to range the land’s SCL SCL status. decisions The decision to process and be made by the exist cover around 4%this of bill the to State, identifymining. SCL the may convoluted only process protect outlined 1% in of the State from open-cut Trigger Map - ZoneArea Map - and zoneThe Protection map Area names map used andthe in Protection maps sections currently available 25, on 26 DERM's and website. 28 do not match those on Section/Initiative/comment Comment/key point application. It’s not clearapplications why so DERM regularly. haveregulatory This risk sought for will proponents. to introduce (Sub revisit 42, a Att these p.7) large SCL and unacceptable Trigger Map - While the trigger maps showing where Strategic Cropping Land (SCL) Sub 9 Cassowary Coast Regional Council Sub 20 Cotton Australia Regional Council Sub 20 Cotton Australia Sub 27 Moreton Bay FriendsFelton of Submitter 075 025 – 025 – 039 025 – 039 026 & 028 025, 025 Sub 16 Cl.
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2 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point
026 Sub 42 Zone map and zone - Clause 26 defines the terms zone map and zone that are used throughout the Act. Queensland S26(1) - While QRC supports the updating of the trigger map (and Resources protection/management maps in S28), the maps should apply at the time Clause 90(2) relates to applications and changes to the SCL status of an area. Council of application and the extent of these maps at that time should be captured. The Act should anticipate a process of tracking changes to these key maps so that applications are not subject to retrospective assessments. S38(2) needs to be more explicit if this was the intent. (Sub 42, Att p.8) 027 Sub 42 Zonal criteria and zonal-criteria compliant land - Clause 35 provides for the Minister to make an amendment, including to add a new zone, through a regulation. Queensland S(27)(1)(b) - QRC is concerned at the risk of new cropping zones and Establishing criteria in clause 37 for determining what amendment may be made to a zone, and the process of Resources criteria emerging in the future without the rigours of legislative scrutiny. requiring Governor in Council approval to making a regulation, satisfy the requirements of section 4(4) of the Council QRC argue that New zones should be established by legislative Legislative Standards Act 1992. Any activities in the future proposed to be prescribed by regulation are likely to amendment. (Sub 42, Att p.8) require a RAS and associated public consultation process. Any regulation will also be subject to Parliamentary scrutiny. 028 Sub 21 Protection Areas - On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection Xstrata Coal The ‘protection area’ were decreed without: any quantitative assessment and Management Areas. of the subject land; scientific justification; agro-economic justification; stakeholder consultation; consideration of the Standard Criteria for Land within the Protection Areas that meets the SCL criteria will be afforded the highest protection by the new Ecologically Sustainable Development as prescribed in the EP Act 1994; legislation. or due consideration to the potential and real social, environment and The Management Area includes many regions that are important to Queensland's cropping and horticultural economic impacts. industries and so will have new development assessment obligations compared to current arrangements. The Recommendation: Delete this section. Bill is consistent with this announced policy. 028 Sub 37 The Protection area delivers policy intent, the management area does On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection Queensland not. The decision of Government to move to a two tiered system of a and Management Areas. Farmers’ Protection area and a Management area (by exclusion) is not supported Federation by QFF. The policy intent of this Bill is not delivered in those areas that Land within the Protection Areas that meets the SCL criteria will be afforded the highest protection by the new will fall within the Management Areas, these being simply defined as that legislation. area of validated SCL that does not fall within the Protection areas. The definition of the protection area, as simply that area which is mapped as The Management Area includes many regions that are important to Queensland's cropping and horticultural so, (Clause 28) provides no industry or community understanding as to industries and so will have new development assessment obligations compared to current arrangements. the reasoning behind these areas being afforded the protection that was envisaged would be applied to all validated SCL. To this extent QFF The Bill is consistent with this announced policy. submits that the concept of the Protection area and the Management area should be struck out of the Bill. With this done, all other provisions relating to the SCL principles of protection, avoidance, minimisation, mitigation and productivity along with the multiple exemptions, transitional arrangements and community benefit tests would provide more than sufficient capacity for the policy to avoid onerous limitations on economic or community development. 028 & Sub 48 We believe that the protected area should be expanded to cover the The August 2010 SCL policy framework provided trigger maps that clearly indicated that SCL was restricted to 029 FutureFood whole State and over time the “management areas” would be phased out. the eastern areas of Queensland. Queensland This would require department officers to map areas now outside the mapped protection area. We believe this would give a higher degree of On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection 72 Environment, Agriculture, Resources and Energy Committee Clause 32 generally provides that an amendment is not minor if it is changes what is or is not potential SCL. The Management Area includesindustries and many will have regions new that development assessment are obligations important compared to to currentThe arrangements. Bill Queensland's is cropping consistent with and the horticultural announced policy. and Management Areas. Clausesmap 26 to provides show for a protectioncombined area map area of to boundaries. all show zones that zone Clause is boundaries. not 29 a protection provides Clause area. SCL that 28 provides the zone for management and a areaboundaries protection to is provide area clarity that to part boundaries stakeholdersThe on of provision as whether allows the the released for SCL frameworkremains the on applies cadastrally boundaries to based. 31 to a particular be May lot updated or 2011 when not. lots were areClause reconfigured based 32(3) chiefly to provides ensure on that that itthe cadastral the area is boundary is a also minor an amendment area to to which remove the from Act the does trigger not apply. map an area of potential SCL if DERM comments and Management Areas. Land within the Protection Areaslegislation. that meets the SCL criteria will be afforded the highest protection by the new We believe the minor - future food production,included any in amendment a that zone compromises or a protection lot area map being because it consists of both When a map amendment is S32(1)(c)(ii) - QRC is concernednot that automatically subsequent result lot amendments inamending should an amendment the to drafting thechanges in map. to lot QRC boundaries. recommend (Sub clarify 42,S32(3) Att - that p.8) is not the supportedlisted because section in QMDC clause does 6 not does are believe acceptable. the not exclusions apply to Amendments should befragmentation reflective is ofprotected. wider avoided. QMDC landscape QMDC values isamendment asserts may so concerned undermine that that the thatpromoted total by all the what protection Bill. for If is SCL the SCL intent deemed that of should should the as amendment be be is to a protect SCL “minor” and destroying SCL while payingshould for the offsets management andareas? areas If mitigation the be measures. soils are Why same treated considered strong as differently legislative SCL security then to as theyp.2) should offered FFQ the be recommends in offered the protected the committee the protectedthat supports area a phases (Sub change out 48, to the theSCL legislation Management area. should When mapping berecommends is included completed, the all inprotection committee of the supports lands Protectionsame a in as area. the the proposal protection management areas. (Sub49, (SubThis to area 48, definition p.3) p.3) by is strengthen confusing making FFQ and requires the conditions rewriting to the provide legal clarity. On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection Section/Initiative/comment Comment/key point security to the areas described nowThe as Policy in states:- the management areas. The Government considersStrategic Cropping that theLand is best a cropping finitelonger term. resource land As that a must definedused general be aim, to as conserved Planning protect and andpermanent approval managed such powers for lands should alienation the be fromprotection or those area developments compliesmanagement diminished that areas with lead do productivity. the not toshould comply. policy its be FFQ phased believe intent theallow out (above) management as areas proponents however soon the as opportunities possible. to It contains proceed provisions with that their developments Qld MurrayDarling - Committee Inc. Qld MurrayDarling - Committee Inc. Qld MurrayDarling - Committee Inc. Queensland Resources Council Submitter 032 Sub 43 032 Sub 43 032 Sub 42 029 Sub 43 Cl.
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4 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point SCL and non-SCL is unacceptable (See clause 32(1)(c)(ii)). 033 Sub 42 Minor amendments - Under clause 33 of the Bill, the chief executive must publish a notice of any minor amendments on the Queensland S33 - Suggest that when the Chief Executive amends maps that they are department’s website. Resources also responsible for contacting affected landholders and resource tenures Council holders. (Sub 42, Att p.8) This approach is consistent with similar provisions in other legislation involving map amendments (e.g. Vegetation Management Act 1999). 033 Sub 43 QMDC supports the notice being published on DERM’s website and Clause 33(2) provides that a minor amendment does not take effect unit a notice is published on the Qld Murray - would suggest it be published at same time using other public media. department’s website. Darling Other amendments to the trigger map (clause 34) must be made under a regulation, which provides for public Committee scrutiny. The provisions in the Bill do not prevent the Government from more widely advertising an amendment Inc. where appropriate. 034 Sub 42 Trigger map amendments - Note 1 under Clause 34 clarifies that an amendment to add land as potential SCL does not affect existing Queensland The ability to have new potential SCL springing up near existing projects source authorities for the land. Resources is a real concern. QRC suggests that references to potential SCL should Council be deleted. And recommends that existing projects and tenures need to be grandfathered when new areas are included in the trigger maps. (Sub 42, Att p.8) 034 Sub 42 Trigger map amendments - Clause 10 of the Bill specifies that areas which are validated as SCL and decided non-SCL override the Queensland S34(3) - this clause requiring regulation needs to exempt the regular ‘potential SCL’ on the trigger map. Resources process of updating the trigger maps to reflect registered decisions – Council otherwise the decision register and maps will be out of step. QRC This does not prevent the chief executive from making available a map layer showing SCL and decided non recommends that the section is amended to allow validation decisions on SCL that overrides the trigger map, to show stakeholders the validated status of land. SCL to be updated on all maps immediately ie no need for a new regulation to update in this case. (Sub 42, Att p.8) 034 Sub 43 QMDC suggest the required criteria needs to refer Schedule 1. Clause 34(1) allows the chief executive to amend the trigger map to add or remove potential SCL. Clause 34(4) Qld Murray - provides that areas can be added to the map if the chief executive considers the land is likely to have land that Darling is highly suitable for cropping. Alternatively, the chief executive must be satisfied that the land to be removed is Committee not expected to be suitable for cropping. Assessment of land against the criteria in Schedule 1 is provided for in Inc. a validation application from which land is confirmed as SCL or decided non SCL (Chapter 2, Part 2, Clauses 40-75). 035 Sub 42 Power to amend by regulation - Clause 35 provides for the amendment of an existing zone or protection area through a regulation. Queensland Given the consequences of these amendments, QRC believes that such Clause 36 provides that these amendments can only be done by the Minister where the Minister goes through a Resources changes should require legislative amendments. The amendment of a public notification and submission process. Council protection zone should require the approval of Governor in Council. QRC recommends the section be deleted. (Sub 42, Att p.9) Clause 37 provides that approval of the regulation will require Governor-in-Council approval and will also be subject to Parliamentary scrutiny under the Statutory Instruments Act 1992.
035 Sub 54 Zonal and protection area amendments - Clause 35 provides for the amendment of an existing zone or protection area through a regulation. Origin Energy Origin is concerned that the provisions for new zones S.35(1) to establish new zonal criteria and the ability of the Minister to amend any zone or Clause 36 provides that these amendments can only be done by the Minister where the Minister goes through a protection are by regulation will allow the expansion of SCL areas without public notification and submission process. adequate legislative scrutiny. Origin submits that the establishment of any new zones should be dealt Clause 37 provides that approval of the regulation will require Governor-in-Council approval and will also be with by way of proposed amendments of the Act and that amendments to subject to Parliamentary scrutiny under the Statutory Instruments Act 1992. 74 Environment, Agriculture, Resources and Energy Committee . Clause 36 provides . . Sustainable Planning Act 2009 provides that words are to be read in the context provided by the Sustainable Planning Act 2009 Sustainable Planning Act 2009 ). Acts Interpretation Act 1954 Technical metadata is included in the digital trigger map layer that was publically released on 31 May 2011. Vegetation Management Act 1999 Clause 36 provides for the(d) Ministerial notice provides of for a a proposedamendment. zonal minimum or of protection 21 area amendment. days for Sub clause anyone (2) toThe timeframe make established a in the submissiondevelopment Bill to applications is under the consistent the with Minister the aboutClause timeframes 36 established the provides for proposed for public the notification(d) Ministerial on IDAS notice provides of for a a proposedamendment. zonal minimum or of protection 21 area amendment. days for Sub clause anyone (2) toThe timeframe make established a in the submissiondevelopment Bill to applications is under the consistent the with Minister the aboutClause timeframes 36 established the provides for proposed for public the notification(d) on Ministerial IDAS notice provides of for a a proposedamendment. zonal minimum or The of protection timeframe 21 area amendment.notification days established on for Sub in IDAS clause anyone (2) the development tothat applications Bill make the under a is proposed the submission consistentamendment amendment to with and the must Minister the is beundertaking about timeframes available a published the longer established on or proposed in more for the extensive aSection consultation public 32A department’s process. newspaper of the website. circulatingAct. generally These in provisions theTherefore where do area a of not wordthe is the prevent legislative not provision. the defined the Minister The ordinary term meaning “boundary” of therefore the takesland word on and the must special ordinary be data. meaning relied ofProviding upon the an in additional word the definition as would context understood limitClause when of the 33 applied application and to of 34 maps, the relate provision to unnecessarily. the updating of trigger maps. DERM comments Clause 36 provides that thearea proposed of amendment the must amendment be and published is in available a on newspaper the circulating department’s generally website. This in the approach is consistent with similar provisions in other legislation involving map amendments (e.g. s website and would suggest it be ' relied on. The word "boundaries" isHowever, used it is in unclear a as numbercovered to by precisely of those which places provisions. boundaries within Clarification are is intended section required. to 38. be The SCL Billbinary does not membership, articulateidentification whether although of the the it “exact maps locationshown denote of a is binary the a membership boundaries” assumed fuzzy is onof intended. each or membership QMDC that map will recognises pose to that challenges be byto this to type the design outcome requiring the sought. Bill Itintended the so is as important that a all SCL definitiveclearly is layer, document protected. QMDC the If process would aor used suggest binary improved to there membership data update is such is the a as SCL more need register refined to with mapping, new including the metadata QMDC recommends thedays submission to period allow should formake be a better submission community extended (See clause engagement to 36(2)(d)). and 28 real public time to QMDC recommends thedays submission to period allow should formake be better a community extended submission engagement (See to clause and 28 notice 36(2)(d)). real QMDC public being also time published recommends to published the on at same DERM time usingfor other clause 33. public media as per recommendation Record-keeping obligations for maps - Section/Initiative/comment Comment/key point a protection zone should require theMinisterial approval notice of of Governor-in-Council. proposed amendment - If these zones or protectionMinister areas should are to be beholders amended, in required QRC the believes affected to area. the (Sub QRC 42, contact Att recommends p.9) the all section be tenures reworded. holders andMinisterial notice land of proposed amendment - S36(2)(d) - QRC suggestsshort that given the the likely 21 complexity daysuggests of period changes a for that could submissions period be isholder proposed. has of too QRC been contacted. a (Sub 42, 30 Att p.9) business days after the landholder/tenure Qld MurrayDarling - Committee Inc Inc. Moreton Bay Regional Council Committee Inc. Qld MurrayDarling - Committee Queensland Resources Council Qld MurrayDarling - Queensland Resources Council Submitter 038 Sub 43 038 Sub 27 037 Sub 43 036 Sub 43 036 Sub 42 036 Sub 42 Cl.
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6 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point 039 Sub 27 Public access to maps and draft amendments - This provision means that if the regulation approving the map amendment is not disallowed by Parliament, the Moreton Bay The effect of section 39(5) is unclear, especially the phrase "...or no draft map on the website becomes the map as amended. Regional disallowance motion is passed." Use of common English in this instance It references the terms stated in the Statutory Instruments Act 1992, to ensure the correct legal application of the Council would be preferred. provision is adopted. 040 Sub 21 An application is prohibited of a “Cropping History decision has already Clause 40 (2)(c) does not circumvent the on-ground assessment process. In management areas, land must Xstrata Coal been made: have both a cropping history and meet the criteria to be validated as SCL. This circumvents the on-ground assessment process to determine is the land meets the SCL criteria and thresholds. It is commonly accepted that Clause 40 (2)(c) simply provides that where a cropping history decision has already been made for the property, much cultivated land in Queensland, as elsewhere, is marginal with a further application cannot be made for cropping history for that property. respect to sustainability of cropping production. Recommendation: Delete this section. Similarly clause 40 (2)(d) provides that where a criteria decision has been made, for the property a further criteria application cannot be made for that property. 040 Sub 42 Who may apply - Clause 40 provides that an eligible person can submit a validation application to the chief executive to make a Queensland S40(2)(c)(i) - it is not clear why an application is prohibited if a cropping validation decision for the application and that the decision is a final decision. Further, the clause prevents Resources history decisions had already been made for the property. QRC further applications being made once a decision or an initial application is made. Council recommend that the section is reworded to clarify the intention, otherwise this risks perverse results for gaming applications. (Sub 42, Att p.9) 040 Sub 43 QMDC supports any third party making an application to validate or Clause 41 defines an eligible person who can make a validation application under Clause 40. The validation Qld Murray - prohibit SCL. process may be undertaken by a person other than the land’s owner and includes a person who has made an Darling application under a resource Act. Therefore, this provision identifies the range of people who may apply to have Committee the land validated. Any person can make a submission about the application (clause 55(2)) which the chief Inc. executive must consider in making a validation decision (clause 69).
041 Sub 27 Who is an eligible person - The cropping history test applies only in the management area. Moreton Bay It is unclear why section 41(e) relates solely to a "management area" Regional rather than both Management areas" and "protection areas". Council 041 Sub 30 Who is an eligible person - Clause 40 of the Bill provides that an eligible person may apply to the chief executive to decide whether to Haystack Landholders should have the right to have validation done prior to record any of the land in the decision register as SCL or as decided non-SCL. Clause 41 defines who is an Road Coal resource company if they wish. eligible person as: Committee the owner of the land, or, if it has more than 1 owner, any of its owners; anyone else holding a legal or equitable interest in the land; a person who has the written consent to make the application from the owner of the land, or, if it has more than 1 owner, any of its owners; a person who, under a resource Act, has made an application or a tender for a tenure; if the land is in the management area and forms part of a property—someone who, under any of paragraphs (a) to (d), is an eligible person for a part of the land. Therefore, landholders will have an opportunity to make an SCL validation application provided it is not a prohibited application as provided for under clause 40(2). 041 Sub 37 QFF notes that under Clause 41 of the Bill a person other than a land Clause 41 describes who is an eligible person for land for the purposes of making an application on deciding Queensland owner may wish to apply for SCL validation of the land. This poses a very what is strategic cropping land (making a validation application). Subclauses 41 (a) to (c) provide for land Farmers’ difficult and untenable situation. The SCL validation process will require owners, a person with a legal interest in the land or a person with written land owners consent. Subclause 41 (d) Federation access to the land and this would require landowner consent. If the provides for a person who under a resource Act has made an application or a tender for tenure. Access to land application was made by a resource company then they would not have in these instances falls under the jurisdiction of the relevant resource Act. 76 Environment, Agriculture, Resources and Energy Committee , Statutory Instruments Act 1992 and Acts Interpretation Act 1954 Clause 45 provides thatproperties. an application can only be made for one whole property or for two or more whole Clause 41 describes whowhat is is an eligible strategic personowners, cropping for a land person land with for (making aprovides the legal a for interest purposes a in validation of person the application). making land whoin or under an Subclauses these a a application instances person 41 resource falls on with Act under (a) written deciding has the land made jurisdiction to owners an of consent. (c) the application Subclause relevant or 41 provide resource aClause (d) Act. for tender 41 for describes land tenure. who isis Access an strategic to eligible cropping land person land for (makingperson land with a the a validation purposes legal application). of interest Subclausesfor making in a 41 an the person (a) application land who to on or under (c)instances deciding a a provide what person resource falls for with Act written land has under land owners,amendments made owners for a an the Schedule consent. application 2 Subclause or – jurisdiction 41 a Tenure. (d) tender of provides for tenure. the Access relevant to land resource in these Act.Drafting conventions are established DERMwhich by are has administered the by recommended the Office of clarifying Queensland Parliamentary Counsel. On May 31 2011 thestructures. government released a Feedback received regulatory is assessment currently statement being which reviewed. assessed a number of fee Clause 45 states that the application must be made on a property basis. DERM comments eligible person - common parties. The distribution ofrecognise soil real types property and resource title tenure boundaries. do These not sections would require a regulation thereforeshoulder should the not totalactual cost. require staff DERM the cost needsgeneric to to individual multiplier. administer illustrate landholder the in applicationsApplication the to must and regulation be property-based not the - beThe based reason on for a unclear, applying especially the as the croppingpotential property SCL. history may Some be atthousands far properties the of larger hectares may property while than potential the consist levelof SCL parcel may say of is be of 100ha thousands aproperty much within or smaller has the parcel not tens property. been of pass cropped If the within test. the This the potential approach testspecific would SCL period, plot seem then area of to weaken it potential withincropping. the should SCL QRC link the recommends not and between deleting the the this section. abilityApplications (Sub relation to 42, ‘properties’ Att demonstrate p.10) consisting a of history lots of owned or managed by Who is an S41(d) - Conducting an SCLbut assessment may the require land access todefinition access the of land, provisions tenure in assumeall schedule a 2 tenures is granted unusual, or tenure.provides it just some is Further greater not production detail the clear in(but tenures. if defining it this The which applies applicants to explanatory does maydefinition of be memorandum not tenure eligible must be seem clarified.General (Sub application explicit 42, requirements Att - in p.10) Section the 42(f) Act). requires thatRegulation..." QRC "...any be recommend other included that informationshould in prescribed be under a expressed a Regulation "validation which as is relevant application". to "...all the ThatQMDC context." believes other that required some information communitycost benefit prescribed should recovery be under recognised for in the a a validation application. The fee prescribed under a Section/Initiative/comment Comment/key point legal access to theland land and they unless have they therefore alreadyagreement. negotiated This a hold land bill tenure access specifically rights andby states compensation over an a the eligible validation request personwould can who generate be an does made unacceptable not situationsuch yet and outcomes. must have be any amended source toCANEGROWERS avoid approval. consider This that under Clausethan 41 a - land where owner afundamentally may person flawed. wish other The to Bill specifically applybe states for made a SCL validation validation by requestapprovals. of can an This the would land eligible generate -amended. person an is unacceptable who situation does and not must be yet have any source Sub 21 Xstrata Coal Queensland Resources Council Council Qld MurrayDarling - Committee Inc. Moreton Bay Regional Queensland Resources Council Canegrowers Submitter 045 & 046 045 Sub 42 042 Sub 43 042 Sub 27 041 Sub 42 041 Sub 39 Cl.
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8 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point resource proponent with a tenure application across multiple real property Clause 46 provides that a property can consist of lots that are owned by the same person; or that one or more titles to make multiple applications. common owners; or are managed as a single agricultural unit. Recommendation: Delete this section. 045 & Sub 27 Application must be property-based - What is a property - On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection 046 Moreton Bay It is unclear why sections 45 and 46 require validation applications for and Management Areas. Regional land within a "management area" to be over an entire property (lot or lots) Council if only part of it is shown as "potential SCL". If the size of the property is This announcement identified that for land to be validated as SCL in a management area a history of cropping the issue, then a minimum area for validation should be stated instead must be demonstrated. (Section 42(d) implies that an application can be over part of a lot). Clauses 45 and 46 are consistent with this announcement. Application of the Bill is such that the cropping history must be applied to entire properties, not just the area otherwise subject to the applicant. 048 Sub 21 Zonal criteria compliance - A technical assessment involving detailed checking of 128 sites across the five strategic cropping land zones— Xstrata Coal The zonal criteria and threshold limits are based on flawed science. ‘The Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping zones—and an proposed criteria and thresholds are not effective and will not reliably independent expert review were undertaken to ensure the criteria are scientifically robust. On 14 April 2011 the discriminate the best cropping land from other land. The threshold limits proposed criteria were publicly released, along with the technical assessment report and independent expert are generally too low. This has two broad consequences; viz. (i) their review. Further detail about the consultation undertaken in developing the criteria is outlined in the Consultation usefulness is restricted to merely identifying land that is not suitable for Briefing on the Strategic Cropping Land Bill 2011 prepared for the Environment, Agriculture, Resource and viable farming, as opposed to distilling the :best” cropping land from all Energy Committee. Including the criteria and thresholds in the Bill satisfies the requirements of the Legislative other, and (ii) any viable cropping land is generally identified as SCL.” Standards Act 1992. The criteria are a fundamental part of the Bill and will determine how the Act will affect Palaris (2011), reproduced at Attachment 1. individuals’ rights and liberties. The Australian Society of Soil Science Inc. (ASSSI) provided a Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation submission to DERM on 21 July 2011 (reproduced her as Attachment 2), Committee. The Committee’s functions will be to give the Minister independent scientific and technical advice in which they stated there were ‘dismayed at the creation of yet new about the administration of the Act relating to soil and land resources and other matters decided by the Minister. criteria to identify the most productive cropping land” and highlighted These matters can include advice on the criteria and the thresholds. “critical errors of fact” in relation to the criteria. It appears that the Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but before 30 ecommendations of Palaris and ASSI were not adopted by DERM. January 2016. Recommendation: Remove the criteria from the Act (part 2) and place in subordinate regulation or similar. Given the grave concerns expressed by Palaris and ASSI it is likely that the criteria and threshold values will need significant amendment post- implementation. This will more easily be achieved is the criteria and threshold values are listed in regulation or guidelines. 049 Sub 1 When a property has a cropping history - On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection Charles Nason Cropping history test poor criteria to identify SCL for the future and Management Areas. Land within the Protection Areas will be afforded the highest protection by the new legislation as these areas are under imminent development pressure. For land to be validated as SCL in a protection area, land must meet the SCL criteria and thresholds for the relevant zone (schedule 1 of the Bill). The Management Area includes many regions that are important to Queensland's cropping and horticultural industries and so will have new development assessment obligations compared to current arrangements. For land to be validated as SCL in a management area, land must meet the SCL criteria and thresholds for the relevant zone (schedule 1 of the Bill) and have a history of cropping. Clause 49 and 50 set out the requirements of demonstrating cropping history. The Bill is consistent with this announced policy.
78 Environment, Agriculture, Resources and Energy Committee provides that words are to be read in the context provided by the Acts Interpretation Act 1954 On 31 May 2011,and the Queensland Management Government Areas. announced Thisarea the announcement a implementation identified history of of that the cropping for must policy land be through demonstrated. to Protection be validated as SCL in a management history. The provision as drafted is consistentSection with 32A government of policy. the Act. Therefore where a wordthe is legislative not provision. defined the ordinary meaning of the word must be relied upon in the context of Clause 49 of the BillJanuary provides 1999 that and the 31 12 December yearat 2010. period least in two This periods which period, a of whichconsidered property above is average must in static, have rainfall setting was been for specifically cropped mostclimatic the chosen is areas variations boundaries because between of across the 1 it of State includes thedependence the in on State. which five issues cropping not criteria occurs. However, related Climateexample, zones to the the was the sale to Bill quality of does of reflect water the rights notSection the soil which include resource would 49 different and affect irrigation cropping provides the the water land’s potentialproperty. systems that status availability for Further, as perverse and a the due strategic outcomes cropping cropping to property (for history land). validation its decision has decision is is a applied made to in required record conjunction an cropping with area the history as zonal decided if criteria SCL decision or the decided before non-SCL. a criteria are met on parts of the DERM comments On 31 May 2011,and the Queensland Management Government Areas. announced Thisarea the announcement a implementation identified history of of that the cropping for must policy land be through demonstrated. to Protection be validatedClause as 49 SCL is in a consistent management with this announcement and sets out the requirements of demonstrating cropping required cropping history - because developments arefood likely production to areas. Failure occur to protect within “agricultural areas” existing will and/or impact on future When a property has the The interpretation of the testpoint has where been it dramatically watered isfilter down, at difficult to all. to Specifically: the imagine(1)(b) that perennial crops the existed test on the(2)(a) will property. the provide use of any the useful rest(2)(b) of the crops the property do is not need notIt considered. to is be ridiculous for that sale. harvested an abandoned during orchard, the fromtreated which last as fruit decade, having has a and notdoes ‘cropping been which not history’ has contradict over the that gonedefinition period. original wild, of While policy crops the could of over drafting 3 the be filter or entire property more mean crops, out that the thesubstantially very test any rewriting loose is 1(b). unlikely (Sub land. to 42, AttQMDC p.11) QRC is concerned that recommends this clause deleting poses a risk 2(a) to the and protection of SCL (b) and property so asdecision to that negate "required"timber the plantation" cropping effect is history" used ofsection for has a 49(1)(b). determining been tiny "required Thatstatement cropping shown. incursion term history" in The needs in subsection to term triggering (2)(b)sale be that as a well the defined, as materialsdoes especially the do specific given not not exclusion the apply need in"domestic to purpose" section to in 50 be this "domestic that context for also croppingThe purpose" needs history requirement to activities. for be defined/quantified. a (Notelast property to that 12 have the been yearsformerly cropped term cropped is three that times is concerning. inirrigation now to the Growcom grazed be due introduced is to in this changed aware area, rain it patterns. could of Were again be land cropped. which was Section/Initiative/comment Comment/key point Cropping History Test - The test for croppingprove history largely is irrelevant. extremely Aa week, total to of 12 the 3 year crops extentproduction or, that period security. worse it yet, would 3 will cultivations, hardlyRecommendation: in Substantially indicate re-write this the sectionfrequency land o of require a is a least of cropping only, 6 as crops value this in would for 12 only serve years.When food to a reward property Delete poor has farming frequency the practice. requiredThe to cropping cultivation history criteria - for49(1) determining is "required expressedproperty. in cropping That terms criteria history" should of be under specified expressed section in uses terms operating of on the majority any of of the the Qld MurrayDarling - Queensland Resources Council Growcom Moreton Bay Regional Council Xstrata Coal Submitter 049 Sub 43 049 Sub 42 049 Sub 36 049 Sub 27 049 Sub 21 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Committee landscape features that support agricultural systems, resulting in either Inc. complete losses of agricultural uses on affected lands or diminished Clause 49 is consistent with this announcement and sets out the requirements of demonstrating cropping productivity and future cropping opportunities. QMDC argues that by history. focusing on existing land use and a 3 year cropping history is not acceptable. It is either SCL or not according to scientific criteria. The opportunity to secure strategic cropping areas that will prove invaluable as climate refugia for cropping in the future is being overlooked. 049 Sub 52 When a property has the required cropping history - On 31 May 2011, the Government announced the implementation of the SCL policy through a management Environmental Potential for future cropping activities must be a relevant consideration in area and protection areas and maps of these areas were released. Two protection areas were identified: Defenders classifying land in the Management Area as SCL. The Committee will The Central Protection Area which includes the ‘Golden Triangle’ region of Central Queensland near Emerald; Office note that the failure to demonstrate the required cropping history, as it is and defined in clause 49, requires a validation decision that the land is non- The Southern Protection Area which includes the Darling Downs, Lockyer Valley, Granite Belt and South SCL. Burnett.
The Bill is consistent with the Government’s announced policy. 049 Sub 54 When a property has the required cropping history - On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection Origin Energy The Government has previously stated that in order for land in the and Management Areas. This announcement identified that for land to be validated as SCL in a management management area to be classified as SCL, the land would need to have a area a history of cropping must be demonstrated. Clause 49 is consistent with this announcement and sets out history of crop-ping in addition to meeting the SCL criteria. Origin has the requirements of demonstrating cropping history. understood, from its reading of consult-ation material and guidelines that On 14 April 2011 the proposed criteria were publicly released, along with the technical assessment report and the history would apply to individual parcels of land (ie. individual lots). independent expert review. On 8 September 2011, guidelines for applying the proposed criteria at a property S.49 of the legislation applies to the requirement to a property instead of level were released as well as an online mapping tool. land. The term ‘property’ is defined in section 46 as a contiguous area consisting of a lot or lots that are owned by the same person, or have one No guidelines have yet been released for demonstrating cropping history. or more common owners, or are managed as a single architectural unit. Origin is concerned such a blanket requirement does not sufficiently identify areas which truly are suitable for cropping but instead allows for larger areas of land to be sterilised from future resource development. It should be noted that there are large areas of Queensland where properties consisting of contiguous lots covers significant land areas. Origin requests that Bill be amended to require that cropping for the harvesting of grain has to have physically occurred on individual parcels of land for a period of more than three years. 049 Sub 41 When a property has the required cropping history - On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection and Queensland Things that are not crops for required cropping history The historic and Management Areas. This announcement identified that for land to be validated as SCL in a management 50 Law Society cropping test in S49 an S50 is quite different from what was previously area a history of cropping must be shown. set out in the factsheet published on the DERM website. In particular there are new provisions that even if a tiny part of a large property was Clause 49 and 50 set out the requirements of demonstrating cropping history and provides for things that are not used for cropping, ‘it does not matter to what use the rest of the property crops when demonstrating required cropping history. was put during the relevant period’. Why does it not matter? It is pleasing to note that some items for domestic purposes are no longer included, but there is still a question about items such as orchards which have not been harvested commercially or otherwise for more than a decade and have simply been abandoned. (Sub 41, p.3) 80 Environment, Agriculture, Resources and Energy Committee Environmental Protection The Bill does not impact on the State Development and Public Works Organisation Act 1971. or The effect ofrequirements section stated in 53 clause isprior 53 to have to the Bill come being prevent to passed pass. an by Drafting the Parliament. applicant errors and publishing other a minor errors public may be notice amended under section 55 until the and Management Areas. Thisarea announcement identified a that history fordemonstrating of land required cropping to cropping history. be must validated be as SCL demonstrated. in Clause aClause 53 management 50 refers provides to theunder for time clause period things 55. (14 that days) after are which the not applicant crops canThe commence when the 14 public day notice process legislation time e.g., period the toacknowledgement notice assess SPA for a and development provides application. request an a assessment requisitionClause manager is 54 provides 10 consistent that the with applicant businessClause must 55 similar give of days a the provisions copy Bill to ofin provides in the that a give application an other to newspaper applicant owners the seeking circulating ofmade to the in to applicant validate land each land the being as an chief local validated. SCL executiveis government or who not area SCL must SCL that must consider or publish these includes(clause not a submissions the notice (clause SCL. 121). land. 69) Similar Public when Developmentslegislation, deciding submissions public for whether will may notice example, the be the land requirements stillAct environmental apply impact 1994 be to statement subject requirements anexisting under public to applicant the notification requirements. for existing exceptionalClause public circumstances 54 notification ensuresthemselves. requirements that under all other owners are made aware of applications being made by parties other than DERM comments On 31 May 2011,and the Queensland Management Government Areas. announced Thisarea the announcement a implementation identified history of of that the cropping for must policy land be through demonstrated. to Protection be validatedClause 50 as provides SCL for in things that a are management not crops when demonstrating required cropping history. This is contrary to the time(20) stated Section in section 55(2)(h)(ii) 53. also requires that submissions address "...the Notice to ownerssomeone - is negotiating -S54(2) to purchase -definition land It from of the could State ‘owner’. – betenants item Also, 1(c difficult (ie, for ) of to for item the interests. ascertain (h), leases QRC whether this under suggests that could 3endeavours this include to years) section contact unregistered be and the amended owners”.persons various to named This be in other should publicly “make be unregistered searchable best satisfiedat land the by and addresses writing resource provided tenure to in registers, suchPublic registers. notice (Sub of 42, application Att - p.12) Section 55 requires that publicmade notification as of a soon "validation as application" practicable be "after making the validation application". Application of div 2 - This [14 days] seemsexecutive to a decide whether very to generousit accept should an allocation be application]. done of QRC within suggests time 3 that business [for days. (Sub the 42, chief Att p.11) Notification - Consultation and disclosureprivate for and business project lives, that must be will better managed. impact on landholders Section/Initiative/comment Comment/key point Things that are not crops forSection required should cropping history explicitly - purpose exclude crops feeding grownstatements of on have livestock the notbroad property on indicated coverage for that the (i.e. the the torefers property. legislation include to fodder). would The The anyexample, have previous schedule fodder. such form 2 QRC policy a of dictionarymade recommends also clear cultivated that, in section crop as 50livestock a and for food the minimum, which any dictionary they it thatall forage purpose types crops should of for for fodder be including themselves the should purpose is beThis for excluded. of excluded. clause (Sub is Preferably, 42, not Att supported p.11) as per above comments. On 31 May 2011, the Queensland Government announced the implementation of the policy through Protection Moreton Bay Regional Council Queensland Resources Council P.R. Ingram Queensland Resources Council Qld MurrayDarling - Committee Inc. Queensland Resources Council Submitter 055 Sub 27 054 Sub 42 054 Sub 25 053 Sub 42 050 Sub 43 050 Sub 42 Cl.
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2 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point matters mentioned in section 44..." There are no specific matters mentioned in that section. 055 Sub 42 Public notice of application - Clause 55(3) provides a description of the land is sufficient only if it allows members of the public to identify the Queensland S55(3) - This section requires the applicant to take responsibility for the land’s location without conducting a land registry search. This requirement is to ensure an interested person can Resources comprehension ability of the public – some examples would help reduce readily identify the land on which the application is being made. Council this risk. QRC suggests that Some examples in notes would help reduce the uncertainty about what level of information is required. (Sub 42, Att p.12) 055 Sub 43 QMDC recommends that a set timeframe should be stipulated for the Clause 55(1) provides that, as soon as practicable after making the validation application, the applicant must Qld Murray - publishing of an application notice (See clause 55(1)). QMDC publish a notice about the application in a newspaper for public notification. Clause 55 (4) provides for public Darling recommends the submission period should be extended to 28 days to notice for submissions about a validation application. It provides for a submission period of not less than 21 Committee allow for better community engagement and real public time to make a days. This does not prevent a longer time period being provided for the submission period. The timeframe Inc. submission (See clause 55(4)). established in the Bill is consistent with the timeframes established for public notification on IDAS development applications under the Sustainable Planning Act 2009.
055 Sub 42 Public notice of application - Acceptance of submissions - Clause 55 provides for a consistent approach to validation applications in all circumstances which gives the and Queensland [requiring public notice and submissions period in all situations] may public an opportunity to make a submission against an application. 56 Resources unnecessarily delay development even if the land is clearly not SCL (e.g. Council has already been permanently alienated or not cropped for a long period of time). QRC recommend that the Chief Executive of DERM should have discretion to decide to not publicly notify if evidence that land doesn’t pass cropping history test is satisfactory to the Chief Executive and the applicant is also the landowner. In this case the Chief Executive should be able to go straight to the decision. (Sub 42, Att p.12) 056 Sub 43 QMDC recommends that the reasons for the Chief Executive to accept a Clause 56(1) provides for when the chief executive must accept a submission and Clause 56(2) provides that Qld Murray - submission about a validation application be recorded and made the chief executive may, but need not, accept a late submission made about a validation application. Darling publically available (See clause 56(2)). Committee Inc. 057 Sub 27 Amending application - The Bill does not prevent an application being re-advertised. Moreton Bay Section 57 prevents certain types of amendments being made to Regional validation applications after they are advertised for public submissions. Council This should be revised to allow the amendments to be made on the condition that the application is then readvertised. 060 Sub 21 Zonal criteria - No response required. Xstrata Coal Refer to response above 061 Sub 27 Validation Decision if any of the land is zonal criteria compliant - The provisions allow the chief executive to consider adjoining areas not subject to an application for validation Moreton Bay Section 61(2)(b)(ii) indicates that the minimum land area requirement for decision. Regional determining compliance with "zonal criteria" can be achieved by Council combining the area of the land covered by the "validation application" with contiguous "potential SCL". This becomes a nonsense if that "potential SCL" is subsequently shown not to be suitable for inclusion as SCL. 061 Sub 42 Validation decision if any of the land is zonal criteria compliant - Clause 61 (2) (b) provides for a validation decision to be made on the soil resource boundaries. Queensland S61(2)(b) - The drafting of this clause would seem to completely 82 Environment, Agriculture, Resources and Energy Committee released in Protecting Queensland’s released in September 2011. released in September 2011. released in September 2011 provides the approach for estimating the size of a SCL map unit, including Protecting Queensland’s strategic cropping land: Guidelines for applying the proposed strategic cropping Protecting Queensland’s strategic cropping land: Guidelines for applying the proposed strategic cropping quality cropping landconfigured that is areas suitable thatidentified for are in a not the broad suitable proposed rangestrategic for criteria of cropping that standard crops land: were croppingSeptember (for 2011. publicly Guidelines example, systems). released by for The on excluding specified applying 14 small minimum April the or 2011 sizes proposed poorly considered and were strategic SCL when cropping applyingassessed land at the property criteria SCL or criteria.resource paddock that level. may The The be criteriaand minimum identified land are size as resource focused requirements specialists, SCL, apply on to not to identifying the a the areas soil property. of minimum high The size resource quality minimum of and cropping the sizes land are soil that were not is determined suitable by for agronomists a broad range Subclause 61 (2)decided (iii) land provides using for theadjacent the lots best chief in order available executive to information. determine to the make size of The a the chief soil decision resource executive about irrespective of may whether property consider lot or or the not tenure boundaries. soil the resources land on is The specified minimum sizes were identifiedand in the proposed criterialand that criteria were publicly released on 14 April 2011 Drafting errors and other minor errors may be amended prior to the Bill being passed by the Parliament. The minimum sizes werequality determined cropping by land agronomistsconfigured that and areas is that land are suitable resource not suitableThe for specialists, specified for a standard to minimum cropping sizes broad identify systems). were identified areas rangeand in of of the proposed high crops criterialand (for that criteria were example, publicly released by on excluding 14Clause April 62 small 2011 of or the poorly criteria. Bill provides The for criteria a areminimum minimum size focused size requirements on for apply the land to soilminimum that the resource will sizes minimum and be size were are considered of not determined SCL the assessed when by soil at applying resource agronomists property the that of SCL and may paddock be land level. identified resource as The SCL. specialists, to The identifying areas of high DERM comments Protecting Queensland’s strategic croppingcriteria land: Guidelines for applyingconsidering areas the adjoining proposed the strategic validation application cropping area. land , for SCL, is the following size for the following Zones-…” Minimum size is tooreduced large for to Eastern 10 Darlingzones. Downs. hectares Recommend as it per be Minimum land Coastal, requirements - GraniteIt Belt is and unclear wetapply, to tropics what ie. land willcompliance these SCL they minimum area or apply landthat other the area to land? minimum requirements land The the areabe policy will requirements SCL intent real apply only. to has areas property alwaysRecommendation: demonstrated been to lot Amend the area,minimum wording size the o criteria this section as followsRecommend no - minimum “the property size be included in the Bill. This comment appears to relate to clause 62 of the Bill which provides for a minimum size for land that will be QMDC asserts that the nominatedof minimum SCL sizes through may well material100, result change 50, in of loss or use35(1). 5 in These hectares areas development are sites orimpact likely less the to on than be minimum SCL significantlandscape. size and in quantity prescribed adjoining and under uses. theWhat clause A overall has to likely be decided outcome forWhat has a is Protection to a Area be decided fragmented forThe the meaning Management of Area the term66 "decided and land" 68 as needs itthe to appears part be of in the expanded sections land 61, to thatthe 65, is land make covered shown it to by clear be the application. "zonal thatWhat compliant", is it rather the than only minimum all size applies of - Minimum to size shouldproducing reflect enterprise in the the zone. land area required for a viable food Section/Initiative/comment Comment/key point undermine the policy intentionthe of assessment. having QRC a recommend minimum deletingIt land application seems to size to ‘potential’ as introduce SCL. parthas a of new never SCL been principle discussedp.12) of in contiguity any by of stealth, theValidation which decision policy if documents. any of (Sub theS61(2)(b)(iii) 42, land - is Att zonal This criteria compliantignores clause - the references fact thecovered that definition under this of land SCL (ii).discretion is in to As the S4, defined chief drafted executive. but asbe QRC (iii) deleted, recommend potential and that would SCL S61(2)(b)(iii) that must the seem andbe references deleted. hence to to “any give of the extraordinary land” S61 and 2b must Growcom Xstrata Coal FriendsFelton of Inc. Sub 27 Moreton Bay Regional Council Council Qld MurrayDarling - Committee Council Queensland Resources Submitter Resources 062 Sub 36 062 Sub 21 & 068 062 Sub 16 061, 065, 066 061 Sub 43 061 Sub 42 Cl.
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4 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point of crops (for example, by excluding small or poorly configured areas that are not suitable for standard cropping systems). The specified minimum sizes were identified in the proposed criteria that were publicly released on 14 April 2011 and Protecting Queensland’s strategic cropping land: Guidelines for applying the proposed strategic cropping land criteria released in September 2011. 062 Sub 42 What is the minimum size - The specified minimum sizes were identified in the proposed criteria that were publicly released on 14 April 2011 Queensland These minimums, which perform as a de facto SCL criteria, do not need and Protecting Queensland’s strategic cropping land: Guidelines for applying the proposed strategic cropping Resources to be set out in legislation. If the legislation was less rushed, they would land criteria released in September 2011. OQPC have advised that the legislation is the appropriate location for Council be in a regulation. QRC recommend that this clause be removed from the the criteria. Bill. (Sub 42, Att p.13) 062 Sub 42 What is the minimum size - Clauses 35 to 37 provide for the Minister to make a zonal or protection area amendment. Clause 35 provides Queensland S62(d) - Given the far-reaching consequences of establishing new zones, that the Minister must undertake public consultation on changes to zonal or protection area amendments. Resources QRC believes that they should be established under legislation (after a Council genuine consultation process and full RAS). QRC recommends deleting this section. (Sub 42, Att p.13) 062 Sub 43 QMDC is concerned by the references to minimum land or part of land The minimum sizes were determined by agronomists and land resource specialists, to identify areas of high Qld Murray - sizes and recommends that the legislation should be reflective of wider quality cropping land that is suitable for a broad range of crops (for example, by excluding small or poorly Darling landscape values so that fragmentation is avoided. All SCL should be configured areas that are not suitable for standard cropping systems). Committee protected and there should be no minimum area assigned to that Inc. protection. The specified minimum sizes were identified in the proposed criteria that were publicly released on 14 April 2011 These requirements remain controversial. QMDC is of the view that 100 and Protecting Queensland’s strategic cropping land: Guidelines for applying the proposed strategic cropping hectares for the Western Cropping Zone is too large. Our basis for this land criteria released in September 2011. concern is that properties across this zone cover a wide range in terms of size and crop type. In the Eastern Darling Downs Zone, many properties supporting horticultural crops are less than 50 hectares. Parts of the Eastern Darling Downs zone are being promoted as a horticulture precinct by DEEDI which will result in high value, highly intensive horticulture in the near future. The risk of the proposed framework is that development (mining, residential or other non-agricultural uses) is likely to occur within existing and/or proposed food production areas resulting in a fragmented landscape with inadequate buffers. 065 Sub 42 Decision if application only addresses required cropping history - The Bill provides that all of a property has a required cropping history if the criteria are met on parts of the Queensland S65(2) - See comments regarding S45 above. There will be many cases property (s49). Further, the cropping history decision is applied in conjunction with the zonal criteria decision Resources where only a small part of a property will have a cropping history. It is before a validation decision is made to record an area as decided SCL or decided non-SCL. Council therefore inappropriate to decide that a cropping history applies to the whole property. QRC recommend that the clause be amended to enable Clauses 65 to 68 provide for how various combinations of applications for cropping history and zonal criteria cropping history decisions to be made for sub-property areas. (Sub#, Att decisions can occur over time. p.113) 065 Sub 42 Decision if application only addresses required cropping history - Subclause 65 (6) (b) provides for SCL assessment based on soil resource boundaries rather than property or Queensland S65(6)(b) - The drafting of this clause would seem to completely tenure boundaries. Resources undermine the policy intention of having a minimum land size as part of Council the assessment. QRC recommend that this section be deleted. Delete This is consistent with Protecting Queensland’s strategic cropping land: Guidelines for applying the proposed this section. It seems to introduce a new SCL principle of contiguity by strategic cropping land criteria. Released in September 2011. stealth, which has never been discussed in any of the policy documents. 84 Environment, Agriculture, Resources and Energy Committee Strategic cropping land protection assessment for environmental may be appealed to the Land Court. timeframe for the chief-executive to make a decision. maximum The provision provides for athat single jurisdiction decisions in under relation to Chapterand validation 3 resource decisions. authorities Part The 4 Bill provides in Clause 108 Submitters to have an appeal avenue under Judicial Review where they can demonstrate standing. Clause 70 provides for ais period generally in 3 months which or the 3 decision months on after validation the must applicant has beThis responded is made to a by an the application chief-executive, requisition. which Subclause 71 (1) (b) providesthe land that an the information chief notice executive about the must validation give decision the as applicant soonClause and as 41 practicable any defines an after other it eligible eligible is person person made. and for includes someone who hasClause applied 71 for tenure. (1) providesaware an of” being example a of person with “any an other interest in eligible the person landClause recorded 241 the in provides Chief a that land Executive the registry. SCL ought chief protection executive decisions reasonably and must to exceptional keep circumstances be a decisions. register showing the outcomeClause of 242 validation provides decisions, thatwebsite the and must chief make the executive register may available for keep inspection the and purchase. decisions register published onThis the comment relates department’s to clause 74lot (3) plan (a) once it which is relates to validated. how to record a noteThis on is title different about to SCL for s55description a must (3) particular allow which an is interested person about to identifying identify the the land land to in decide a whether public to make advertisement a – submission. per the ex notes, the DERM comments The Clause relatesapplication by to a the person whocriteria circumstance is decision. an where eligible The person sub-clause a forsubsequent the ensures applicant cropping property is that an and history the eligible subsequently person. a validation decision person decision applies has is for a only been zonal made made for following the area an for which the Sustainable , and, to a degree, in Queensland’s resource laws. This approach is consistent with thirdPlanning party Act rights 2009 under the that made a submission during theEffect public of notification validation period. decision - S72(3)(a) – S55(30 requires applicantsof to the provide land a sufficient –location description such without that conducting aamending a member the land of section registry thesufficient to description search. public of require can the QRC land. the identify (Sub recommends Appeal chief 42, the to Att Planning executive land’s p.14) and Environment toFor Court - also resource projects, provide the a body. Land Court QRC would recommend seem thatprojects to to the be appeal the to section the appropriate is LandAppeal Court. to amended (Sub Planning 42, to and Att Environment allow p.14) Rights Court to - resource appeal decisions, such ascircumstance validation decisions, or in exceptional the Queensland PlanningCourt and and Environment Land Court of Queensland should be extended to submitters. sufficient. (Sub 42, Att p.14) Noting and taking effect of decisionS.71(1)(b) - – the chieftenure executive interests should affected be bybe responsible the reworded for decision. so contacting QRC the suggests all Chief(Sub Executive that 42, contacts the Att all p.14) section affected tenureNotice interests. and taking effect of decisionClause - 71(b), which dealsnotice with to be validation given decisions, toreasonably requires “any to a other be eligible decision person awareunclear the who of”. Chief is While Executive entitled ought – itof and goes can the therefore further expect decision. than –state Clauses to clause receive that 129 129, notification copies it and ofthe is 71(b) decisions owner should be or be given ownersland; to, amended the of at to relevant the a local clearly government minimum: land; authority; the the and applicant; owner any person or or owners persons of all adjoining Section/Initiative/comment Comment/key point (Sub#, Att p.113) Decision ifstipulates application that "if only theproperty, a applicant addresses criteria is decision only can zonalIt not an is be eligible unclear criteria-Section made how person for thatunder the for 66(3) restriction rest joint part is of ownership to of the be property." as the persons. applied It opposed to is an to also area differentto unclear of land why parts land within this that a owned same "protection is by area". provisionDecision period different has - not been applied This [3 monthsseems for like an the inordinately chief longallowed time for executive and submissions. inconsistent to QRC with suggests the make that brief a 15 period business validation days should decision] be Environmental Defenders Office Council Queensland Resources Council Queensland Resources Council Environmental Defenders Office Queensland Resources Council Queensland Resources Moreton Bay Regional Council Submitter 073 Sub 52 073 Sub 42 072 Sub 42 071 Sub 52 071 Sub 42 070 Sub 42 066 Sub 27 Cl.
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6 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point There is no evidence that submitter appeal rights open the floodgates in terms of litigation. Costs provisions in those Courts already exist to minimise frivolous or vexatious conduct. 076 Sub 42 Development with a permanent impact - Potential SCL is land for which the validation decision has not yet been made to confirm SCL. A range of Queensland It would seem odd to treat the protection of SCL and potential SCL as matters including the SCL status of the land would inform a court’s consideration of penalties in relation to an Resources equivalent, particularly given the ability to generate new potential SCL via offence. Council regulatory amendments. QRC recommends rewording of the section. A maximum penalty should be stated for a corporation. If it is the same for an individual then it should be clarified. (Sub 42, Att p.15) 077 Sub 41 Development with a temporary impact - Chapter 2 part 1 of the Bill outlines the purposes of the trigger maps. The purpose of the trigger map is to Queensland In contrast [to providing a framework for offsets and legal mechanisms for identify land that is potential SCL and must be validated or elected to be treated as SCL, prior to a development Law Society the management of offsets] , penalising the productive use of ‘potential undergoing an assessment to determine its impacts on SCL and what conditions, if any, the Chief Executive SCL’ even for temporary purposes (under s77), where the landowner may place on the development. does not want to use the land for cropping purposes, does not appear to have any possible justification, on the face of it. On the other hand, if ‘potential SCL’ had been mapped only from the perspective of creating a ‘pool’ of land for offset purposes, this would have increased the value of that land and created a commercial incentive for the land to be actively managed for actual cropping purposes. (Sub 41, p.2) 078 Sub 24 Exemptions - Key Resource Areas identified under State Planning Policy 2/07: Protection of Extractive Resources are made Cement Sand and gravel resources are becoming more difficult to source, and are exempt from the development assessment triggers under clause 291. Concrete and often located often under cropping land. In addition, hard rock deposits, Aggregates such as basalt, may also occur in cropping land areas. Australia This has been recognised by the Government through the provisions of the Bill which exempt Key Resource Areas from Strategic Cropping Land provisions. We are very supportive of these provisions, and acknowledge the Government’s willingness to address industry’s earlier concerns on this matter. (Sub. 24, p. 1). 078 Sub 41 Exemptions - Clause 78 provides for an exemption of carrying out of development that is authorised under a development Queensland S78 protects developments authorised under a development approval, approval – this includes development approvals issued for MCUs and preliminary approvals. The Bill does not Law Society but this would not assist if the existing approval is a preliminary approval, provide for operational works triggers. or the first in a series of approvals which contemplated related approvals On 23 August 2010, government announced its strategic cropping land framework. On 31 May 2011, the (such as a material change of use approval contemplating operational government that resource projects not well advanced in the approvals process would be subject to the full effect works and building works). of the legislation to be introduced. Chapter 9 of the Bill provides for transitional arrangements for eligible There are obvious concerns about this impact on the rights And liberties developments. of individuals under S4 of the Legislative Standards Act 2011, including retrospective impacts under S4(3)(g). (Sub 41, p.3) The Bill is generally consistent with the fundamental legislative principles. 078 Sub 43 QMDC is concerned that because of the number of resource activities This clause provides exemptions to offences of causing temporary or permanent impacts on SCL, where the Qld Murray - proposed in EIS and EA applications that either involve major soil impacts of a development have been permitted through a development approval or resource authority. Darling movement, long term storage dams or facilities or have inherent Committee contamination risks then should the land associated with these projects Inc. be deemed strategic cropping land it will not be able to be reinstated or fully restored to strategic cropping land condition. The development would 86 Environment, Agriculture, Resources and Energy Committee Any resource activitiesChapter that 3, Part cannot 4. meet the code mustEnvironmental be impacts, assessedEnvironmental and for Authority issued conditioned under example the in Environmental Protection accordance protection Act 1994. with of water, products and waste, are addressed in the The August 2010 SCLClause policy 3 framework of released theState by Bill Planning the provides Policy Government that 1/92 provided Development thea and that broader purpose Conservation range SPP1/92 of of of would agricultural the Agricultural land. continue. LandClause Bill (SPP1/92) 81 is provides continues to for to a protect applypotential regulation to land SCL. to that make It is a cannot codepotential highly about SCL permit suitable in how a for a resource protection resource cropping. activities area. Any activity may be resource that carried has activities out onChapter a that SCL 3, permanent Part or cannot 4. impact meet to be the carried code out mustClause on 81 be SCL provides for or assessed apotential and regulation SCL. to conditioned make It a in cannot codepotential accordance about SCL permit in how a with a resource protection resource activities area. activity may be that carried has out on a SCL permanent or impact to be carried out on SCL or DERM comments has been temporarilypoint diminished or does permanently volume impacted and on; configuration at what impact on productivity; whether S81(1) – This willactivities. be very QRC important suggest for somethe exploration section. examples and (Sub other would 42, Att low-impact help p.15) clarify the intent of QMDC asserts thataddress the regulation construction, and operations,resource standard products activities. conditions and codecumulative This impacts must wastes of includes: the in resourcemines, activity best context infrastructure in and relation environmental of to waste numbers producedon of practices; on wells, SCL water etc; the whetherProtecting an supporting impact SCL SCL andprotect will associated water. If soils have land requiresis achieves a because the addressing of versatile access permanent the cropping to groundwater landwhat need impact as classification area well to of it as land on cropping or reliability size etc; SCL. of footprint triggers the indicator that productivity necessitated because of the restraintsin of the organic mining matter process, would breakdownand result erosion in of the the subsoil surfacefor layers. layer If 10 the years, and projects most stockpiled instructure. of a the Another it pile consideration of dispersion would is topsoil be thatsituated anaerobic. if in It any flood would proposed prone lose facilities areasfurther are its this to damage biology will be to and mean stockpiles. thatcropping The flooding poses potential soils the impacts risk of could of reinstated the soil, include Project loss on a or the impacts reduction reduction on of surrounding in underground crops. water the suppliesSPP for and yield SCL dust - potentialQuestions of the need the for another SPP given SPP1/92 already in place Standard conditions code - Section/Initiative/comment Comment/key point therefore permanentlyproductivity. QMDC recommends alienate the removal ofQMDC clause rather 78(1)(b). submitsprogrammes than that have not thorough temporarilyland yet is and demonstrated diminish only that detaileddisturbed a mining temporary prime landscapes rehabilitation cessation agricultural capability and research to and productivity. agricultural soils In productionstate order (and can and to cropping potential), return that entire be thelayers soil soil and profiles reconstructed would then close have stockpiled to to separately toMixing be its and cut of replaced, original into in the pre-mine order, soil after profileto mining. is likely the to increased resultupper in salinity depression of and layers. crop exchangeable yields Additionally, due sodium the percentage in stockpiling the of soil, which would be Qld MurrayDarling - Committee Inc. P&E Law Queensland Resources Council Submitter 081 Sub 43 081 Sub 42 080 Sub 28 Cl.
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8 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point creating a buffer zone will protect cropping capacity from a resource activity etc; whether the site can be “fully restored” back to the parameters in the original land suitability assessment and demonstrate how this is possible based on peer reviewed scientific evidence; and that there are no alternative sites. 082 – Sub 9 Development approvals - The February 2010 discussion paper released by the Government for public consultation outlined a proposed 088 Cassowary If these provisions are necessary, they should be in the SPA. planning framework to conserve and manage the strategic cropping land. The framework proposed a state wide Coast approach to ensure the State’s strategic cropping land resources would be given the same consideration against Regional all types of development—whether developments assessed under the Sustainable Planning Act 2009 or Council resource developments (which are not assessed through the Sustainable Planning Act 2009). The feedback received on the discussion paper informed the August 2010 policy framework released by the Government. The August 2010 policy framework proposed that the following legislative and planning instruments would be developed: A new Act specifically for SCL A new State planning policy under the Sustainable Planning Act 2009 for SCL to address SCL requirements for development assessable under Sustainable Planning Act 2009;, and Amendments to existing resources legislation to recognise the requirements of the new SCL Act for resources developments. The Bill fits into existing processes established under the Sustainable Planning Act 2009 and resources legislation. Clauses 83 – 88 of the Bill, setting out the requirements for development applications, apply not just to developments assessable under Sustainable Planning Act 2009 but also to development applications under the resources Acts. 083 – Sub 9 Requirements for development applications - Clauses 83 – 88 of the Bill set out the requirements for development applications. These clauses provide that a 088 Cassowary The need to comply with provisions of this division otherwise application development application must include information about matters such as the development’s location, the Coast is not properly made is onerous and will increase applications costs. development footprint and how it relates to SCL or potential SCL, and an assessment of the impacts of the Regional development on SCL or potential SCL. Council These requirements are necessary for the chief executive to conduct an assessment and make a decision. 084 Sub 9 Requirement that land be, or elected to be treated as, SCL - Clause 84 requires that applications must state that land is SCL and include, or be accompanied by a copy of a Cassowary Requirement for an applicant to either obtain a validation decision or elect relevant information decision about a validation decision or a registry record (SCL), or if the land is potential SCL Coast to treat land as SCL is onerous – nearly all applications outside urban - that the applicant has elected to treat this part as applying to the application as if the land were SCL. Clause 82 Regional footprint in Cassowary Coast region will be affected. It means that an requires that this applies for development under IDAS on SCL or potential SCL. However this should be read in Council applicant either has to accept the consequences of having their land the context of the Integrated Development Assessment System (IDAS) under the Sustainable Planning Act 2009 classified as actual SCL, or instead go through a costly and complicated and clauses 290-292 of the Bill. Clauses 290 – 292 of the Bill create triggers and exemptions for the process to seek a determination on the SCL status of their land before concurrence agency jurisdiction for assessing SCL. Therefore the requirements under clause 84 to validate or being able to make an application. elect to accept the trigger map will only apply to developments triggered under clause 290 (eg material changes of use, other than a use or in an area mentioned in schedule 13A, of a lot of 5ha or larger if the footprint for the change of use is wholly or partly on SCL or potential SCL and more than 750m2).
084 Sub 42 Requirement that land be, or elected to be treated as, SCL - Clause 96 provides the application requirements for development applications in Part 3 Division 2 apply for Queensland While the section falls under a heading of Development Approvals, environment and resources authorities. This provides for consistent application requirements and avoids Resources DERM indicated that this path is also open to resource projects. QRC duplication of drafting. Council suggest that it is difficult to see any benefits from this approach. (Sub 42, Att p.15) 88 Environment, Agriculture, Resources and Energy Committee 1994”. The Bill (clauses 98 andon 99) allows SCL. for conditions These to conditionscondition. be may imposed If include on these conditions developments conditions requiring to the are manage or applicant not prevent to complied impacts restore with, SCL it to may its be pre-development an offence under the Act on which the authority Tenure applicants are able toor validate elect the to area accept of the their map development for under the Chapter purposes 2 of s40-41 theirThere to project is provide assessment. no certainty retrospectivity associated with this provision. Clause 92 of theenvironmental SCL authority. Bill requires that the SCL protection decision must be made prior to the grantingChapter of 4 an ofcircumstances the decision for SCL a Bill proposeda development. type outlines Clauses of 113 the development and to solesubmission 114 processes be provide criterion required in for before exceptional to a the circumstances regulation regulation be can and to be set prescribe considered made. out for theClause necessary 96(b) the includes considerations elements infrastructure and or public of proposed infrastructure an relating to exceptional the resource activity. This is consistent with“amendments the August will 2010 require frameworkconditions assessment which stated for of that the restoration conditions impact and would on other be on SCL environmental tenure and matters — will will page 7 condition continue tenure to accordingly. be addressed Further under the EP Act DERM comments Clause 85 (2)(a) does not exclude the types of infrastructure mentioned . Rehabilitation of subsidence ande.g. other an impacts ombudsman needs stronger oversight development” as per clauseinclusion 85 of (2)(b). pipelines, QMDC communication however towers,telemetry recommends power infrastructure in lines the the and footprint poles, (See and clause 96(b)). What must be decided - S98(1)(b) - The definitionsource authority in means S20 that the ofwithout regulator can either attach the reference conditions to tenureparticularly either to or – alarming the when which EA readan in as was application conjunction the with for being S22(b)assessment. an which QRC considered. feels means amendment, there renewal This isin a or this lack clause re-grant provision of understanding or canotherwise is of an would mining trigger tenure opportunity be the to exempt.attached to capture QRC the further EA recommends and developments that notRestoration that the - the tenure. (Sub conditions 42, are Att p.16) Given that S92 requiresfor a the SCL resource protection activity,protection decision with how no before will definition EIS of this approval its protection nor act demise any for provide entrenched the limitations any45, current to meaningful p.1) and legal for future generations’QMDC food would expect security? the (Sub Act‘exceptional to circumstance’ provide a and definition not onwritten. [rely] what is solely deemed on an a regulation yet to be QMDC support the identification and description of all the “footprint of the Section/Initiative/comment Comment/key point QMDC support the identification anddevelopment” description - of all theQMDC “footprint of however the recommends thetowers, power inclusion lines of and poles, pipelines,(See and communication clause telemetry 85 infrastructure (2)(b)). in theApplication footprint and operation of pt 4S90(2) - – the status ofmoving SCL the should be goal as postsmade. at after the time the QRC of investment an suggestapplication in application, should not an that be EIS assessed under rather hasapplication. the Should already rules than not that been apply applied to flirting at ‘potential’QMDC the SCL. supports with time (Sub this 42, of clause. retrospectivity, Att p.15) an No response required Sub 25 P.R. Ingram Queensland Resources Council Darling Committee Inc. Qld MurrayDarling - Committee Inc. Peter Boulot Qld Murray - Council Qld MurrayDarling - Committee Inc. Qld MurrayDarling - Committee Inc. Queensland Resources Submitter 098 – 099 098 Sub 42 096 Sub 43 093 Sub 43 092 Sub 45 092 Sub 43 090 Sub 42 085 Sub 43 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point was issued (e.g. Environmental Protection Act 1994). Clause 99 allows the chief executive to require a financial assurance from the development proponent as security to cover the costs of non-compliance with the conditions. The chief executive in deciding the amount of the financial assurance can consider factors such as the cost of restoring the land.The Bill provides for appropriate enforcement powers (chapter 7). 098 – Sub 26 Restoration - Schedule 2 provides that pre-development condition, for a provision about the carrying out of development on 099 ASSSI Collection of baseline data for returning to pre-development condition land, means that the land is restored to - its condition before the development started; or if the condition cannot be worked out – a condition consistent with contiguous SCL for the land. Part (b) of this definition would allow restoration to be benchmarked against areas of SCL contiguous with the impacted land. 099 Sub 26 Restoration - The Bill does not provide for compensation for permanent impacts to SCL. The Bill is consistent with the ASSSI Within the Bill compensation relates to losses due to actions by an Government’s policy announcements on 31 May 2011 and 27 September 2011 that mitigation is to be provided authorised (State person). There appears to be no provision nor definition for permanently impacted SCL. The policy objective of mitigation is to address the loss of productivity of of compensation, in particular the loss in the productive capacity of land cropping to the State that may occur where SCL or potential SCL is permanently impacted. The Bill deals with while it is impacted upon by mining or subsequent to rehabilitation after matters relating to restoration in clause 14 and in clauses 98 and 99. Restoration under the Bill relates to mining. Further clarification is recommend on who would be liable to pay whether a development has a permanent or temporary impact on SCL. Clause 14 (1)(b) of the Bill provides that compensation considering the State granted the approval to develop. a development will be regarded as having a permanent impact on SCL where the land cannot be restored to its Section 99 provides an example of a protection condition “An SCL pre-development condition. Where a development is determined under clause 98 to have a temporary impact protection condition requires the land to be restored to its pre- on SCL (that is, the land can be restored to its pre-development condition), conditions can be imposed on the development condition”. ASSSI recommends that this protection condition development to require the SCL to be restored. Clause 99 allows the chief executive to require a financial be applied to the development of any SCL land for mining purposes. assurance from the development proponent and in deciding the amount of the financial assurance, can consider the cost of restoring the land. Chapter 5 of the Bill deals with mitigation. Clause 11 (5) clarifies that mitigation is required where SCL is permanently impacted. In management areas, SCL may be permanently impacted and the Bill requires mitigation for the loss of the permanently impacted land’s productivity capacity as cropping land. Mitigation measures that may be permitted under chapter 5 of the Bill do not necessarily have to be undertaken on the land that is permanently impacted. Provided the measures meet the mitigation criteria provided for in clause 135. 099 Sub 42 SCL protection conditions generally - The reason is to avoid restraining the nature of conditions for example, if an innovative solution is possible. The Queensland Defining the scope of SCL protection conditions including 99(1)(c) intended use of these powers is outlined in the explanatory notes. The example given is to require directional Resources “require the applicant to do, or refrain from doing, anything else the chief drilling. Council executive considers is necessary”. It is difficult to see the reason for such broad powers. QRC recommends that the section be deleted. (Sub 42, The Chief Executive is still bound by the general administrative law requirement that conditions are reasonable. Att p.16) Conditions are able to be appealed under s108. 099 Sub 42 SCL protection conditions generally - These provisions are consistent with the financial assurances under other legislation including tenure acts (eg Queensland S99(2) - allows the chief executive to decide the form and amount of Geothermal, P&G and the EP Act 1994). Resources financial assurance limited only by S99(3) the total amount the State may Council incur because of any possible noncompliance. These assurances can be They have been defined to ensure that they can be implemented consistent with the range of existing financial changed under S104(2) with 28 days notice. It is difficult to see the security regimes under the other legislation. reason for such broad powers. QRC recommends that the powers be defined more carefully so that they are consistent with the financial assurance process for all rehabilitation conditions. (Sub 42, Att p.16) 099 Sub 43 QMDC supports the requirement for financial assurance. QMDC is not Clause 104 contains provisions enabling the chief executive to require a change to financial assurance at any Qld Murray - confident that this can be accurately assessed at the time of deciding an time. Darling application, especially if a resource activity is expected to continue over a Committee 50 year timeframe. QMDC recommends that it be more clearly articulated 90 Environment, Agriculture, Resources and Energy Committee by the perverse applicationmeet of the the exceptional circumstances regulation115 criteria making of under the power, clause Bill, whereby 117, however,SCL developments provides would in that that be a any would permitted protection developmentTherefore not under that area a ordinarily a will may regulation. mineral have apply a Clause orapplication for permanent for petroleum a a impact decision project on decision under SCL believed clause thatClause or 126 113 exceptional to of potential provides the circumstances demonstrate for Bill. the apply exceptionalto Minister to provide circumstances to the an make can a overwhelmingly development. regulation submit significantit to benefit is an identify to not classes Queensland. intended of The that development Bills’ developments that explanatory that are notes would considered further not otherwise provide meet that the exceptional circumstances criteria, are to This is aWithout standard the drafting provision convention theremay where is be multiple uncertain uncertainty of decision about their interpreting responsibilities. makers the may effect impose of conditions the on conditions and a the permit.Clause tenure 99 holder allowssecurity the to chief cover the executive coststhe of to non-compliance financial require with assurance the aprovisions conditions. can enabling financial The the chief consider chief assurance executive executive factors in from toClause deciding require such the the a 113 amount change as development of to of financial proponentprescribing the the assurance a at as cost Bill type any time. of of providesprescribed development restoring for exceptional to circumstances the the be development in Minister land.prescribed from exceptional developments to needing Clause circumstances. that to The apply 104 will submit affect to haveapply an contains of a directly individual the the permanent for application. provision, an impact Governor Therefore precludes SCL onto in assessment. a SCL Subclause Council or make 113(3), potential to however, a SCLGeothermal prevents make in Exploration the regulation a Act a Minister protection about from 2004 regulation area, seekingwhen or may any approval meeting the exceptional Greenhouse resource circumstances. Gas The Storage activities. restriction Act ensures that 2009 the can Activities objectives be of prescribed under the by Act a the are not regulation Geothermal defeated Energy Act 2010, DERM comments terms of what parametersbut the Minister’s rather power creates must be ambiguity. exercised No within definition is offered as to what “an Power to prescribe a type ofThis development - is anmineral odd or clause petroleum projects inprescribed. by QRC that recommends defining it states themand that limits as it’s this hard excluded itself is to from a understand S113(3) a very being legitimate from complex need section, for applying it. (Sub to 42, Att p.17) S113(2)(b)(i) - QMDC asserts that this clause does not offer clarity in communities and natural resourcedetermined values of percentage the area. ofapplicant Additionally should a the be pre- financial investedSCL in assurance natural area resource received in managementimproved order from within cropping the to land the that provide isviable natural future supported resources. and opportunities maintained to bySCL protection healthy establish conditions and apply new to issuedS102(3) or authority- – Givenprovisions might The be, this lack seemsexecutive. like of a QRC very clarity recommend broad powerp.16) about that to this grant what the section chief theCondition be empowering SCL financial deleted. assurance protection (Sub changes Financial 42, assurances Att aresignificantly, currently audited and extremely automatically increase low with CPI and should be lifted Section/Initiative/comment Comment/key point than clause 105(2)(b) thatwill the be amount reviewed setreflect at at the regular the time intervals ofcompliance. real and the application be costs increasedQMDC of if asserts restoration/rehabilitation necessary that to significant or bond the or possible Queensland proportion ofrisk Government non financial associated assurance needs with - to the safeguard toresource against collapse/abandonment industry. secure of companies This a increase and/or security of the costs must to local considerresources governments the and for management loss services ofdevelopment. of infrastructure, The as security rates, must a also and of direct be smaller considerate result of rural the and of unique residential issues the holdings resource and the activity compounded or impact to Qld MurrayDarling - Haystack RoadCommittee Coal Queensland Resources Council Queensland Resources Council Submitter Inc. 113 Sub 43 113 Sub 42 104 Sub 30 102 Sub 42 Cl.
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2 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Committee overwhelmingly significant opportunity of benefit to the State” is. QMDC be prescribed by regulation under this provision. Inc. recommends that this term and clause must be defined within the Act. In making a decision on exceptional circumstances, clause 127 provides criterion for deciding no alternative site and clause 128 provides criterion for determining whether there will be a significant community benefit. 113 Sub 43 113(2)(b)(ii) - QMDC is similarly concerned this clause creates ambiguity. Clause 113 provides for the Minister to make a regulation to identify classes of development that are considered Qld Murray - QMDC seeks clearer legislation that outlines what factors must be taken to provide an overwhelmingly significant benefit to Queensland. The Bills’ explanatory notes further provide that Darling into account when the “benefit” of development is weighed against the it is not intended that developments that would not otherwise meet the exceptional circumstances criteria, are to Committee need to protect SCL. What is needed to tip the scales in favour of the be prescribed by regulation under this provision. Clause 127 provides criterion for deciding no alternative site Inc. development? and Clause 128 provides criterion for determining whether there will be a significant community benefit.
113 Sub 51 Power to prescribe a type of development - This comment appears to relate to the draft SPP released by the Government on 5 August 2011 for public Property Ambiguity in the policy – what is classified as ‘over riding public need’ consultation. Council of The Government is currently considering submissions received and a final SPP will be prepared as required by Australia clause 80 of the Bill. 113 – Sub 4 Exceptional circumstances - Clause 113 of the Bill provides for the Minister to apply to the Governor in Council to make a regulation 130 Fitzroy Basin Support the exclusion of the majority of resource activities from being prescribing a type of development to be in exceptional circumstances. The effect of the provision precludes a Association eligible for exceptional circumstance status prescribed exceptional circumstances development from needing to submit an individual application. Therefore prescribed developments that will have a permanent impact on SCL or potential SCL in a protection area, may apply directly for an SCL assessment. Subclause 113(3), however, prevents the Minister from seeking approval to make a regulation about any resource activities, except those under the Geothermal Energy Act 2010, Geothermal Exploration Act 2004 or the Greenhouse Gas Storage Act 2009. The restriction ensures that the objectives of the Bill are not defeated by the perverse application of the regulation making power, whereby developments that would not ordinarily meet the exceptional circumstances criteria under clause 117, would be permitted under a regulation. Clause 115 of the Bill, however, provides that any development that will have a permanent impact on SCL or potential SCL in a protection area may apply for a decision that exceptional circumstances apply to the development. Therefore a mineral or petroleum project believed to demonstrate exceptional circumstances can submit an application for a decision under clause 126 of the Bill. 113 – Sub 22 Exceptional circumstances - The Government announced in Protecting Queensland’s strategic cropping land: A policy framework, released 130 Ian and Janet Exceptional circumstances should not be allowed to encroach on SCL. on 23 August 2010 that: Cox In the rare and unlikely event, where a proponent can demonstrate that: for development under the resources legislation, the resource exists nowhere else; or, for development assessed under the SPA, it cannot occur anywhere else other than on strategic cropping land, the Minister may designate the project as a Excepted Development (with conditions), provided there is a significant community benefit. (page 13) Chapter 4 of the Bill provides the framework for deciding whether a project has exceptional circumstances. Projects that would have a permanent impact on SCL or potential SCL in a protection area may apply for exceptional circumstances under clause 115 of the Bill. A development can only be decided to be in exceptional circumstances where it meets the criteria under clauses 127 and 128 (no alternative site and significant community benefit). 113 – Sub 30 Exceptional circumstances - The Government announced in Protecting Queensland’s strategic cropping land: A policy framework, released 130 Haystack Exceptional circumstances to be rigorously defended on 23 August 2010 that: Road Coal In the rare and unlikely event, where a proponent can demonstrate that: for development under the Committee resources legislation, the resource exists nowhere else; or, for development assessed under the SPA, it cannot occur anywhere else other than on strategic cropping land, the Minister may designate the project as a Excepted Development (with conditions), provided there is a significant community benefit. (page 13) Chapter 4 of the Bill provides the framework for deciding whether a project has exceptional circumstances. 92 Environment, Agriculture, Resources and Energy Committee This definition is consistent with . significant community benefit. Sustainable Planning Act 2009 Land, other than strategic cropping land, on which development can reasonably be located. There is an Clause 116 of the Billan provides for exceptional who must circumstances decideinvolving application an exceptional must significant circumstances be application. This projects.exceptional decided requires circumstance that decision. by the In Minister, these except in instances,Clause certain 118 the circumstances provides the Bill definitionthe definition for provides released what in is that the a August 2010 Coordinator-General SCL Policy make Framework. the type of development todays. be This exceptional does circumstances. not Itestablished prevent in provides the a for Bill longer a areapplications consistent time submission under with period the period the being timeframes of established provided notPart for for less public 4 notification of than the on the 21 submission IDAS Billthat development period. provides would the have framework The for a timeframes circumstances deciding permanent under whether clause impact a 115 project on of has SCL theA exceptional Bill. development or circumstances. can potential Projects only SCL be127 decided in and to a 128 be in (no protection exceptional alternative areareasonably circumstances site may where and practicable it significant apply meets to community for the benefit).throughout do criteria exceptional different under so, Clause clauses parts 11 development of (3) the mustof of reasonably Bill the avoid practicable and Bill is SCL. does provides a not that well ThisClause if necessarily understood principle it common 127 relate law is to is is concept. exceptional applieddefines consistent circumstances. “alternative in The site” with concept as decision the making August 2010 SCL“ Policy Framework releasedalternative by site the Government forQueensland. which For resource other development, development therethat is is when an not the alternative strategic siteother cropping laws. resource when land, the can and development can where reasonably be the located be development on is land The obtained not ownership prevented elsewhere on of in determining these the whether alternative a land suitable sites alternative by of site exists.” the alternative site and business needs are not relevant considerations for The Government announced in August 2010exceptional SCL circumstances Policy (Excepted Development). Framework that the Minister may designate a project as DERM comments Projects that wouldexceptional have circumstances a under clause permanent 115 ofA impact the development on Bill. can only SCL be127 decided or and to 128 potential be (no in SCL alternative exceptional site circumstancesClause in and where 114 significant a it provides community meets protection benefit). the that criteria area a under ‘public may clauses notice” apply must for be published for submissions about a proposal to prescribe a significant community benefit - The choice of draftingrecommends seems that to the substantially word strengthen “overwhelmingly” the be test. removed. QRC (Sub 42, Att market factors such asfrom contractual obligations purchasing maymisunderstanding impede gas of proponents the fromassessed and way another the in basisLNG on source. which which projects reserves commercial arrangementsconsideration. have and for It resources CSG been to area Who also entered must decide exceptional into. displays circumstancesQRC application - supports a the Coordinator This general’sshould role issue and retain suggests that needs theprojects. the OCG power further QRC recommends toGeneral deleting decide administers S116(2) exceptional thep.17) so circumstances exceptional that circumstances for the test. all Coordinator (Sub 42, Att What is a (under avoidance principle) so as tocircumstances have consistently exceptional applied andfor to the development explain cannot why be utilised. alternatives sites Exceptional circumstances - The explanatory notes tolocated the Bill elsewhere (p.49) in state the“no that State, ‘if the alternative the decision-maker resource site” mustcircumstances can decide criteria do be that not cannot the exist.seam be The gas, ownership notes met of explicitly and the statebe resource in legally therefore is the obtained irrelevant from case exceptional as the ofsite’ alternative the coal criteria site fact does means that not that it apply. theof could ‘no Such alternative a resources ruling takesinfrastructure no to which account enable of the the may resource quality to be be transported to market considered or other alternative, the lack of Section/Initiative/comment Comment/key point QMDC recommends thedays submission to period allow should formake be a better submission community extended (See clause engagement to 114(3)). and 28 real public time to Exceptional circumstances - More appropriatedevelopment and definitions clarification as of to what is exceptional what is circumstances reasonably practical for a Queensland Resources Queensland Resources Council Sub 54 Origin Energy Inc. ASSSI Qld MurrayDarling - Committee Submitter 118 Sub 42 116 Sub 42 119 115 – 115 Sub 26 114 Sub 43 Cl.
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4 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Council p.17) 118 Sub 42 Exceptional circumstances - Refer to DERM comments provided on submission 43. Queensland In terms of the corrections that QRC would like to make to the original Resources submission, the three areas are identified below. Council One: Section 118 – In defining the exceptional circumstances test, the original QRC submission objected to the addtition of the word “overwhelmingly” in the phrase “significant community interest”. However, the phrase “overwhelmingly significant community interest” was used in the glossary of the August 2010 policy framework and as such QRC would like to withdraw the recommendation in page 17 of attachment one of our 4 November 2011 submission. 118 Sub 43 QMDC is similarly concerned as per above comments that clause 118(a) Clause 118 provides the definition for what is a significant community benefit. This definition is consistent with Qld Murray - creates ambiguity. QMDC seeks clearer legislation that outlines what the definition released in the August 2010 SCL Policy Framework. Darling factors must be taken into account when the carrying out of development Committee is “an overwhelmingly significant opportunity” against the need to protect Clause 128 provides the criterion for determining whether there will be a significant community benefit. Inc. SCL. What is needed to tip the scales in favour of the development? In determining that purely economic and job creation should not be the sole determining factors. 119 Sub 27 Public access to application - Drafting errors and other minor errors may be amended prior to the Bill being passed by the Parliament. Moreton Bay Section 119 describes the "relevant person" for an "exceptional Regional circumstances application" as the person listed in subsection (2). Council However, that subsection lists obligations of the "relevant person" rather than specific entities. 120 & Sub 27 Public Notice of Application - The effect of section 120 is to prevent an applicant publishing a public notice under section 121 until the 121 Moreton Bay Section 121 requires that public notification of an "exceptional requirements stated in clause 120 have come to pass. Regional circumstances application" be made as soon as practicable "after making Council the exceptional circumstances application". This is contrary to the time stated in section 120. 121 Sub 43 QMDC recommends the submission period should be extended to 28 Clause 121 provides for public notice of an application for exceptional circumstances. It provides for a Qld Murray - days to allow for better community engagement and real public time to submission period of not less than 21 days. This does not prevent a longer time period being provided for the Darling make a submission (See clause 121(4)). submission period. The timeframes established in the Bill are consistent with the timeframes established for Committee public notification on IDAS development applications under the Sustainable Planning Act 2009. Inc. 123 Sub 27 Amending application - The Bill does not prevent an application being re-advertised. Moreton Bay Section 123 prevents certain types of amendments being made to Regional exceptional circumstances applications after they are advertised for Council public submissions. This should be revised to allow the amendments to be made on the condition that the application is then readvertised. 124 Sub 27 Application of Division 3 - Clause 124 provides that at the end of the submission period for an exceptional circumstances application that Moreton Bay Section 124 deals with exceptional circumstances applications that have has not been withdrawn or decided under clause 235(3) Division 3 applies (decision stage). Clause 235 Regional not been "withdrawn or decided under section 235(3)." Reference should discusses what happens where an applicant does not comply with an application requisition provided under Council also be included in that section to lapsed applications. clause 234 from the decision-maker. If the application is a validation application or assessment application, the 94 Environment, Agriculture, Resources and Energy Committee Land, released in Protecting Queensland’s for resource development whendevelopment, the resource there can is reasonably ancropping be alternative obtained land, site elsewhere and in whenownership where Queensland. the of For the the development other land development can ofwhether be the is a alternative suitable located not alternative site on site and prevented exists. business land on needs that are these is not relevant alternative notWhile considerations the strategic sites for development determining by must demonstratedeveloper other public or laws. benefits, investors. it This The may willthe also public not benefits have disqualify far a the outweigh private project (in or from relative personal having terms) the benefit a private significant for benefits. the community The benefit, exceptional provided circumstances provisions considered SCL when applyingassessed at the property SCL of criteria.resource paddock that level. may The be identified The criteria asThe minimum SCL, are minimum size not sizes focused requirements a were property. apply on determinedquality to the by cropping the agronomists soil minimum land and resource size land thatconfigured of and resource is areas the specialists, are soil suitable to that not identifying foridentified are areas in a of not the broad high suitable proposed rangestrategic for criteria of cropping that standard crops land: were cropping (forSeptember 2011. publicly Guidelines example, systems). released by for The on excludingThe specified applying 14 provision small as minimum April the drafted or 2011 is sizes proposed poorly consistent and were with strategic Government policy. cropping land criteria Chapter 4 of theProjects Bill that provides would theexceptional have circumstances framework a under clause for permanent 115 deciding ofA impact the development whether on Bill. can a only SCL be project127 decided or to has potential and be exceptional in SCL 128 exceptional circumstances. circumstances, circumstances in (no where it a it alternative meets protection must thepermanent site criteria area also under or may and clauses be temporary apply significantwhether assessed for impact. community a under Impacts benefit). development Chapter fromdecision will 3. resource have for If Clause developments a environmental aamongst 14 will temporary other and development or defines be things, resource is whether permanent considered whento the authorities in impact applicant when development the under has on exceptional assessing has demonstrated greatest SCL. Chapterdevelopments that a extent the 3, to impact In practicable. manage the has making orapplicant been The chief to avoided a prevent restore Bill or executive SCL SCL those minimised to (clauses its protection must impacts.Clause pre-development 127 98 condition. consider, is These and consistent with conditionsother 99) the than may August strategic allows 2010 cropping include land, SCL for conditions on Policy which conditions Framework requiring development which the can to defines reasonably “alternative be be site” located. as There imposed “ is an on alternative site DERM comments decision-maker may decide the applicationinformation based is on sufficient the to information make at aHowever, hand decision. if for the an decision-maker Otherwise considers exceptional thedecide the decision-maker to circumstances may refuse decide the application the application. section applicationThis is 235(3) comment lapsed. appears provides to that relate the to clause decision-maker 62 may of the Bill which provides for a minimum size for land that will be Combined with the draftingthe in intent S118, of these the sections policy seem in to making go it beyond very difficult for any non-community Sole criterion for deciding no alternativeThe site - alternative siteunable test to for beapplications resource S129(3) projects passed is seems quite whereasdeleted, loose. designed and the QC to that recommends equivalentrewrite. be the that (Sub 42, S127(2)d) other test Att be p.17) clauses for of development this section need a substantial Sole criterion for deciding significant community benefit - Sole criterion for deciding no alternativeSection site 127 deals alternative sitesapplications. The for reference deciding in exceptional subsection circumstance being (3) a to a "...reasonable possible distancedevelopment alternative from, site the relates" regionnecessary or needs effect. locality to to whichSole criterion be the for deciding no more alternativeSection site should prescriptive - preclude the to constructiondams on of SCL compressor have stations and the salt Section/Initiative/comment Comment/key point Classification, grade or quality ofconsideration the of relevant alternative resources sites is for disregarding exceptionalThis in circumstances is - very concerning.SCL Just and as some all will soilsdevelopment not), for are so not coal all the could same coals everas currently pass (some are presented. will the the exceptional be same circumstancesRecommendation: either. test Delete No this section resources Queensland Resources Queensland Resources Council Committee Regional Council Haystack Road Coal Moreton Bay Xstrata Coal Submitter 128 Sub 42 127 Sub 42 127 Sub 30 127 Sub 27 127 Sub 21 Cl.
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6 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Council project to satisfy these tests. QRC recommends a substantial rewrite of were first announced in the August 2010 SCL Policy Framework and this clause is consistent with the policy these sections so that they better match the original policy. (Sub 42, Att intent of the framework. p.17)
128 Sub 43 QMDC agrees with clause 128(a)&(b) and believes these both make The exceptional circumstances provisions were first announced in the August 2010 SCL Policy Framework and Qld Murray - clause 128(c) redundant. this clause is consistent with the policy intent of the framework. Darling Committee Inc. 129 Sub 52 Notice and taking effect of decision - Chapter 4 provides addresses exceptional circumstances. Environmental Notice of decisions made under the Bill, need to be given to all interested Defenders and affected parties – this includes landowners, adjoining landowners, Clause 121 requires that an exceptional circumstances applicant must publish a notice of the application in a Office any other person or entity that made a submission during a relevant state-wide newspaper and in newspaper circulating in each local government area that includes the land which public notification period as well as applicants. In respect to exceptional is subject of the application. circumstance decisions, clause 129 only requires a notice to be given to the applicant. Yet an applicant need not be the owner of the land Clause 241 provides that the chief executive must keep a register showing the outcome of validation decisions, affected. An exceptional circumstance decision is extremely powerful and SCL protection decisions and exceptional circumstances decisions. it must be directly communicated to all interested and affected parties. Clauses 129 and 71(b) should be amended to clearly state that copies of Clause 242 provides that the chief executive may keep the decisions register published on the department’s decisions be given to, at a minimum: website and must make the register available for inspection and purchase. the applicant; the owner or owners of the land; the owner or owners of all adjoining land; the relevant local government authority; and any person or persons that made a submission during the public notification period. 130 Sub 42 Appeal to Planning and Environment Court - The provision provides for a single jurisdiction in relation to validation decisions. The Bill provides in Clause 108 Queensland For resource projects, the Land Court would seem like a better that decisions under Chapter 3 Part 4 Strategic cropping land protection assessment for environmental Resources destination. QRC recommends amendment of the section to enable and resource authorities may be appealed to the Land Court. Council appeals to the Land Court. (Sub 42, Att p.17) 130 Sub 52 Appeals to Planning and Environment Court - Submitters to have appeal avenue under Judicial Review where they can demonstrate standing. Environmental Rights to appeal decisions, such as validation or exceptional Defenders circumstance decisions, in the Queensland Planning and Environment Office Court and Land Court of Queensland should be extended to submitters. This approach is consistent with third party rights under the Sustainable Planning Act 2009, and, to a degree, in Queensland’s resource laws. There is no evidence that submitter appeal rights open the floodgates in terms of litigation. Costs provisions in those Courts already exist to minimise frivolous or vexatious conduct. 131 Sub 42 What is mitigation - Clause 134 provides that companies may enter into a mitigation deed. Queensland QRC is concerned that companies that are investing in mitigation Resources expertise onsite will be put into a situation of tendering to the advisory On 27 September 2011 Government announced mitigation arrangements including a fact sheet that explains Council group for their own mitigation funding. QRC suggests S131 seems too how companies can invest into projects under a mitigation deed. Clause 134 is consistent with this policy narrowly defined and should include scope for investment by the announcement. company onsite so that mitigation measures S133(1) are recognised as 96 Environment, Agriculture, Resources and Energy Committee impacted. In adetermined protection in area, Chapter amitigation 4. permanent for In impact the management can11(5)(a)(i) areas, loss of only the SCL be of Bill states may approved therelied that be on in for permanently identified if permanently an permanently impacted the impacted impactedrequirements exceptional impacts land’s land, and circumstance the of are productivity mitigation the the requirement thereforedemonstrated capacity development Bill can that only cannot the as only requires be impact otherwise has cropping required be beenThe avoided land. reasonably Bill or after does avoided minimised Clause not to or the allow theis minimised. offsetting greatest of chief extent Mitigation consistent SCL. practicable. with SCL executive ismitigation the regarded is has as Government’s to a be decided policy finite provided resource announcements for that that permanently cannot on impacted be the 31 recreated. SCL. The applicant May Bill The 2011 policy has objective and of 27 mitigation September is to 2011 address that the minimised to the greatestland, extent practicable. the Further, mitigation 11(5)(a)(i) requirementreasonably states can avoided that only or for be minimised. identifiedhas Mitigation permanently relied decided requirements impacted on that are if the therefore the applicantextent only has impacts practicable. required demonstrated of after that the the the impact development ChiefThe has Executive cannot been objective otherwise avoided be or ofdevelopment minimised results to mitigation in the permanent greatest is impactslost on to productive SCL. The capacity. address value A ofaveraged per the mitigation land hectare must loss value zonal be greater mitigation ofdetermined of than rate, by arable or prescribed agricultural the equal land. in total to Clause productive the This area the is 132 permanently regulation, value consistent impacted defines will with by the that be the Government’s theClause based policy term 11(5)(a)(i) development occurs announcement on of mitigation multiplied on an the where 27 by value Bill Septemberonly the 2011. states which a zonal be that is mitigation for relied rate. the identifiedMitigation on permanently dollar requirements impacted if value, are land, the therefore the mitigation onlydemonstrated impacts that requirement required of the can after impact the the has chief been development avoided executive cannot or has minimised otherwise decided to that the beThe greatest the Bill reasonably extent applicant practicable. is has avoided consistent orthat with mitigation minimised. the is Government’s to be policythe provided announcements loss for on of permanently 31 impacted productivityimpacted. May SCL. of 2011 In The cropping and a policy 27 todetermined objective protection September the of in 2011 area, mitigation State Chapter is a that tomitigation 4. permanent may address for In occur impact the where management can11(5)(a)(i) SCL areas, loss of only or the SCL be of Bill potential states may approved therelied SCL that be on in for is permanently identified if permanently an permanently permanently impacted the impacted impactedrequirements exceptional impacts land’s land, and circumstance the of are productivity mitigation the the requirement thereforedemonstrated capacity development Bill can that only cannot the as only requires be impact otherwise has cropping required be beenThe avoided land. reasonably Bill or after avoided minimised is Clause to or consistent the thethat minimised. with greatest mitigation chief extent Mitigation the is practicable. Government’s to executive policy bethe announcements provided has loss on for of permanently 31 decided productivity impacted May SCL. that of 2011 The cropping and policy the 27 to objective September the applicant of 2011 mitigation State is has that to may address occur where SCL or potential SCL is permanently DERM comments of a mitigation deed. Clause 131 states thatbeing mitigation land is decided required under for Clausethe identified 98 chief permanently (1)(A) executive (ii). impacted must Clause land consider 100 (defined whether provides the in that applicant clause in has 12 making demonstrated as an that SCL the protection impact decision, has been avoided or Mitigation and offsets should not be allowed in the SCL legislation. Mitigation - Mitigation may not beimpacts on a SCL. deterrent to miners to avoid having permanent Mitigation – productive efficiencies and land values. Mitigation - Mitigation should not be seen as a way for mining to proceed on SCL Mitigation - Mitigation should not allow miners to access SCL Section/Initiative/comment Comment/key point mitigation. (Sub 42, Att p.19)QMDC does not support thebuy mitigation his/her fund. way It out assumes ofsmall a percentage the of developer Act’s the can intention State’s to cropping land. protect SCL, which is a very Mitigation - Valuation must include present and future losses of productivity, Clause 138(3) specifically provides that restoration activities already required by an authority can not form part Sub 32 Bendee Farming Pty Sub 31 Marilyn Bidstrup RoadCommittee Coal Sub 22 Ian and Janet Cox Sub 30 Haystack Sub 17 Jimbour Action Group Qld MurrayDarling - Committee Inc. Submitter 131 – 149 131 – 149 131 – 149 131 – 149 131 – 149 131 Sub 43 Cl.
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8 Cl. Submitter Section/Initiative/comment DERM comments Comment/key point Ltd. loss of productivity of cropping to the State that may occur where SCL or potential SCL is permanently impacted. 132 Sub 21 Mitigation value - A per hectare zonal mitigation rate will be prescribed by regulation and will be based on an averaged land value Xstrata Coal Omitting the “mitigation value” from the Acts add further uncertainty to the of arable land. future viability of resource development in Queensland. Recommendation: Prescribe the “mitigation value” i.e. a dollar value per hectare ion the Act. 132 Sub 42 What is the mitigation value of identified permanently impacted land - The objective of mitigation is to address the loss of agricultural productive value that occurs where a Queensland QRC is curious to know how these values will be determined and when development results in permanent impacts on SCL. The value of mitigation must be greater than or equal to the Resources the draft regulation might be released. The Act should usefully set down lost productive capacity. A per hectare zonal mitigation rate, prescribed in the regulation, will be based on an Council some principles to guide the development of this critical regulation. averaged land value of arable land. Further, there can be no sensible discussion on the impact of the mitigation provisions until it is understood what rate will be prescribed in Clause 132 defines the term mitigation value which is the dollar value, determined by the total area permanently the regulations. Further discussion on mitigation should continue at this impacted by the development multiplied by the zonal mitigation rate. This is consistent with the Government’s time. (Sub 42, Att p.19) policy announcements of 27 September 2011.
132 Sub 43 QMDC does not support minimum sizes. Clause 132 relates to calculating the mitigation value based on the identified permanently impacted land, in Qld Murray - hectares, multiplied by the rate prescribed under a regulation. Darling Committee Inc. 133 Sub 51 What are Mitigation measures The Bill provides the detail as to what constitutes mitigation (chapter 5). This detail was not appropriate for Property Ambiguity in the policy – what constitutes ‘mitigation’ inclusion in the draft SPP released for public consultation in August 2011 as mitigation requirements form part of Council of the Bill, not the SPP. On 31 May 2011, the Government announced mitigation requirements and released further Australia information on mitigation arrangements on 27 September 2011. 135 Sub 23 Mitigation criteria - Clause 11 of the Bill provides that mitigation must have a positive and enduring effect on the future productivity Property Mitigation payments should be made to the land owner when land has of cropping in the State. Mitigation criteria are identified in clause 135 and require that mitigation measures Rights dual occupancy by mining and cropping interests rather than public must: aim to increase productivity of cropping in the State; provide a public benefit; aim to have an enduring Australia benefits. effect; be quantifiable and able to be independently valued; benefit the largest possible number of agribusinesses; and must provide a benefit to the cropping activity or system that was impacted in the relevant local area. The Bill is consistent with the Government’s policy announcements on 31 May 2011 and 27 September 2011 that mitigation is about providing a broader public benefit as the policy objective of mitigation is to address the loss of productivity of cropping to the State that may occur where SCL or potential SCL is permanently impacted. 135 Sub 37 If it were applied in an agreed circumstance (temporary impact) QFF Clause 147 provides that the membership of an advisory group is to consist of a chairperson and other Queensland would see mitigation as being a function of restoring and underpinning members appointed by the chief executive. The reference to NRM groups is in the Explanatory Notes and is in Farmers’ productivity growth. For this reason QFF does not see justification for the the context of an area for 135(1)(f). Federation specific reference to the NRM regional bodies (Clause 135) in the administration or advice with respect to mitigation projects. QFF supports the role of NRM regional bodies within their uncontested regional expertise in NRM planning and management. They do not have this same level of expertise in agricultural productivity, particularly at the state level. Industry organisations do, as do their partners in industry research and development organisation, all of which are specifically tasked with investing in productivity. It is these organisations that should be engaged 98 Environment, Agriculture, Resources and Energy Committee . Mitigation criteria are identified in clause 135 and require that mitigation after mitigation has been paidproponent (eg by who one validates proponent), and theproponent land same elected later is to land found treat for not potentialon to the SCL that be as purposes basis, SCL if and (eg of the by then anotherthe land another later first application). future were the proponent. SCL land under is This clause foundUnder could 84 not clause and to 143, arise they be payments if SCL. from haveincurred the the The paid by mitigation mitigation mitigation first the fund requirement Chief can continues Executive only inThis in be relation clause performing made to makes functions for it required mitigation clear under measuresremuneration. that chapter or the Clause 5 for chief 142 expenses of executive’s provides the expenses thatFinancial Bill paid accounts relating from Accountability from to the mitigation mitigation. the Act fund mitigation 2009 must fund not must be be used for kept in accordance with the number of agribusinesses; bebeing related undertaken in. to the cropping activity that was impacted, including the location it was This is one of sixin criteria isolation. which provide directionMitigation when criteria determining are mitigation identified measures in andState; clause should provide 135 not public and be benefit; include read have outcomesnumber an of: of increasing enduring agribusinesses; productivity effect; be of bebeing cropping related quantifiable undertaken in in. and to the able the to cropping be activity valued; that benefit the wasClause largest impacted, 146 including the provides locationmitigation for deeds it or an was payments advisory frommust the group mitigation seek fund. advice to Clause from advise 138, thecriteria 139 the advisory and and 143 group chief provide is and that executive beClause consistent the satisfied 148 about chief with provides the executive mitigation that mitigation the the measure measureswebsite. Chief mitigation complies Executive under principles with must the publish and mitigation informationThis productivity about is the a principles measures necessary under on clause the to the department’s make it SCL clear principles. that mitigation requirements continue to apply, even in the event that DERM comments This is one of sixin criteria isolation. which provide directionMitigation when criteria determining are mitigation identified measures in andState; clause should provide 135 not public and be benefit; include read have outcomes an of: increasing enduring productivity effect; of be cropping quantifiable in and the able to be valued; benefit the largest mitigation criteria - Request amendments to theuse Bill of the to fund include and no more payment stringent for government provisions administrative re activities QMDC supports the criteria inon general but how suggests clarification the is135(1)(e). needed Act intends to measure the “benefit” referred to in clause Prohibition on carrying out development withoutS137(4) prior – mitigation this - drafting seemsis perverse. found QRC would not argue to thatgroup’s be if SCL, the spending land there candeleted. is no cease. (Sub 42, need Att QRC for p.19) mitigation, recommends so that the advisory Strategic the cropping land clause mitigation fund - Support be establishment of theactivities fund that but will fund benefit cropping must land. be used exclusively for administration or advice with respectthe to mitigation role projects. QFFexpertise of supports in NRM NRM planning andlevel management. regional They of do expertise bodies not in have agriculturalIndustry this within productivity, same organisations particularly at do, their the asdevelopment state uncontested do level. their organisation, regional partnersinvesting all in in industry productivity. of research It is and for which these this role. organisations are that shouldWhat specifically be are engaged the taskedQRC with is concernedagribusiness rather than that perhaps valueThis the of seems production S135(1)(e) of like areaAdvisory focuses the under group. crop. wrong on QRC recommends metricon the that and the S135(1)(e) value number could of is agricultural skew reworded production. of to decisions focus from the Section/Initiative/comment Comment/key point for this role. Clause 135 identifiescriteria criteria include foragribusinesses.” assessing “benefit QFF submits mitigation the thatdoes “projects”. not this delivery The largest criterion on should theoutcomes. intent be possible of deleted the provision as number and it could lead of to perverse cropping If it werewould applied see in mitigation an asproductivity growth. agreed being For a circumstance this function reason (temporaryspecific QFF of impact) does reference restoring not QFF and see to justification underpinning for the the NRM regional bodies (Clause 135) in the Sub 4 Fitzroy Basin Association Inc. Queensland Resources Council Council Qld MurrayDarling - Committee Queensland Resources Queensland Farmers’ Federation Queensland Farmers’ Federation Submitter 144 141 – 137 Sub 42 135 Sub 43 135 Sub 42 035 Sub 37 135 Sub 37 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments 0 Comment/key point measures must: aim to increase productivity of cropping in the State; provide a public benefit; aim to have an enduring effect; be quantifiable and able to be independently valued; benefit the largest possible number of agribusinesses; and must provide a benefit to the cropping activity or system that was impacted in the relevant local area. Clause 143 provides that the chief executive must seek advice from a community advisory group (established under clause 145) before making a payment for mitigation measures from the mitigation fund. Clause 148 provides that the Chief Executive must publish information about the measures on the department’s website. 143 Sub 42 Payments from fund - Clause 143 and the role of the advisory group under clause 146 is consistent with the Government’s policy Queensland S143(2) – QRC is concerned that the advisory group is being forced into about the role of the group in mitigation announced on 27 September 2011. Resources micromanaging progress payments on mitigation work. QRC Council recommends that this clause be deleted. 143 Sub 43 QMDC recommends that if payments from the mitigation fund are Under clause 143 the Chief Executive may make payments from the mitigation fund for expenses incurred by Qld Murray - required for “the expenses incurred by the chief executive in performing the Chief Executive in performing functions required under chapter 5 of the Bill which relates to mitigation. This Darling functions”, those “expenses” need to be listed in a Schedule of the Act. clause makes it clear that the mitigation fund must not be used for remuneration. Clause 142 provides that Committee accounts from the mitigation fund must be kept in accordance with the Financial Accountability Act 2009. Inc. 143 Sub 48 Payments from fund - Mitigation funds will be used for the benefit of cropping lands as per Chapter 5, Part 3 of the Bill (Mitigation) and, FutureFood FFQ recommend the committee support changes to the legislation to in particular, clause 143 which ensures mitigation funds are only payable for mitigation measures or expense Queensland ensure monies from the mitigation fund are used exclusively for the incurred by the chief executive related to determining mitigation measures. benefit of cropping lands. (Sub 48, p.3) FFQ is concerned that as the legislation sits at present the funds could be returned to treasury and not be used for the purposes designated (Sub 48, p.2). 145 Sub 44 Establishment - Clause 147 of the Bill establishes that the Chief Executive appoints members to the community advisory group. Agforce The development of the mitigation process and the utilization of the Community Advisory groups appear to have strong outcomes, but there is Clause 149 provides that the Chief Executive may make guidelines about the community advisory group little detail as to how these groups will be set up. Agforce believes that practices. these groups will require extensive industry input to assess appropriate research possibilities for mitigation, knowledge of the specific cropping Clause 149 (c) states that a guideline may give advice about advisory group practices. regimes of the location, and the processes through which the extension of these group’s findings will occur. To date there is no information as to how these groups will be financed, what the makeup of the groups will be, nor the powers they will hold. Agforce can only assume that these details will be forthcoming through the regulations. At the very least the incorporation of the specific “Research & Development Corporation” into these committees should occur, as the focus of these is to look at the efficiencies and production capacity of these cropping regimes. 145 – Sub 17 Mitigation – Community Advisory Group - Clause 147 provides that the membership of an advisory group is to consist of a chairperson and other 147 Jimbour CAG must include agricultural experience and have local farming members appointed by the chief executive. Action Group knowledge. Monies moved from an area to broader research may not be Mitigation criteria are identified in clause 135 and require that mitigation measures must: aim to increase deemed acceptable. Agree with Haystack Road Coal Committee’s productivity of cropping in the State; provide a public benefit; aim to have an enduring effect; be quantifiable and submission. able to be independently valued; benefit the largest possible number of agribusinesses; and must provide a benefit to the cropping activity or system that was impacted in the relevant local area. Clause 143 provides that the chief executive must seek advice from a community advisory group (established under clause 145) before making a payment for mitigation measures from the mitigation fund and clause 139 has the same requirement 100 Environment, Agriculture, Resources and Energy Committee . Environmental Protection Act 1994 establishes that a power to make a decision also confers the Acts Interpretation Act 1954 Clause 160 provides for the Chief executive’s power to amend aPart restoration (4) notice. states asubmissions minimum about the period proposed of amendment. 28 days that theThis does chief not executive prevent the must Chief give executive from to providing the a longer recipientThe period to if appointment necessary. make any conditionsprovisions and and powers that exist limit in other on Acts, for powers example, the provided under Clause 170 are standard enforcement Clause 147 of the Bill establishes that the Chief Executive appoints members to the community advisory group. Clause 148 providesinformation that about the the chiefmitigation is measures executive managed. on must keep the a department’s record website.Clause 149 of This provides all that does theor mitigation its Chief not administration. measures Executive exclude may and make details publish guidelines about about the matters how in Chapter 5 (Mitigation) Clause 153 provides the poweran for an authorised authorised person person toinvolved reasonably give in restoration believes notice. an a Under“Reasonably activity part person believes” (1), that this in has is applies defined committed if circumstances.” like in or to Schedule is 2 result of committing in the an an Bill SCL SCL as offence,Clause offence “believes 165 on and or provides grounds the clarity is that on matterthe are the alleged is effect reasonable offence. of Otherwise capable in stop withdrawing the ofmatters. work and and terminating being restoration stop rectified. notices work where andSection the restoration 24AA recipient notices of is are the administrative acquittedpower of to amend orrestoration repeal notice also that confers decision. the Therefore power to in withdraw relation or terminate to the the notice. Bill, the power to issue a stop work or a DERM comments where the chief executive proposes toClause enter 145 into a of mitigation the deed. elect Bill to provides establish a for single thegroups group that establishment to represent consider of different mitigation community areas deeds where advisory and cropping mitigation groups. is fund undertaken. The payments, chief or executive establish multiple may Part of the delegationfrom from chief their executive instrument to authorised of person derives appointment S170(1)(a). In this case, QRC Land registry record of restoration noticeSection - 156 mentions withdrawalWhere and are termination the of provisionswork" restoration and dealing notices. "restoration notices"? with withdrawing or terminating "stop Chief executive’s power to amend restorationS160(4) notice – - 28 dayscomplex to request. respond seems QRC insufficientagreement suggests between to the assess that chief a executive the and potentially the time recipient. for response is set by Appointment conditions and limit on powers - with key stakeholders and communities willQFF be submits facilitated that by the the Decision Act. how Register should mitigation also includecommunity details is will about have being andelivered. opportunity to managed. understand how ThisRecord mitigation and will access will to be mitigation measuresS149(e) ensure - – This industry clause [whichguidelines provides giving and that advice the about chiefvery any executive matter broad. can relating QRC make to recommends thisp.20) that chapter] this seems clause bePower to deleted. give (Sub restoration notice 42, - These Att are very broadauthorised powers person which rely whichprefer on allow the to a reasonable see very beliefsection. of (Sub a directive 42, an Att response. more p.21) QRC graduated would system of notices described in this Section/Initiative/comment Comment/key point Membership - Section 147 dealinggroup" with needs the to membershiprequired be by of section expanded the 145. to "communityQMDC address advisory recommends the "community" thatgroups component the be facilitated membership and coordinatedtogether of at expertise the a from regional community withinlocal level each advisory in region. landholders, order Representation NRM to mustAboriginal bring organisations, include industry, communities, government,research business, Landcare institutions andadvisory groups, groups community provide the groups. scientific regions The with the organisations, membership confidence that of consultation the Queensland Resources Council Queensland Resources Council Queensland Resources Council Moreton Bay Regional Federation Queensland Resources Council Committee Inc. Queensland Farmers’ Moreton Bay Regional Council Qld MurrayDarling - Submitter 170 Sub 42 160 Sub 42 156 Sub 27 153 Sub 42 149 Sub 42 148 Sub 37 147 Sub 43 147 Sub 27 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments 2 Comment/key point Council suggests that it is reasonable that these instruments of appointment are made public. QRC suggests that the clause be amended so that the scope of authority of the authorised person is disclosed whenever these powers are exercised (perhaps as part of the identity card in S173). (Sub 42, Att p.21) 227 Sub 39 Technical committee - Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation Canegrowers CANEGROWERS is supportive of the proposal to have a technical Committee. The Committee’s functions will be to give the Minister independent scientific and technical advice committee monitor the application of the criteria. We also support the about the administration of the Act relating to soil and land resources and other matters decided by the Minister. proposal to review the policy framework at the end of 2years of implementation. Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but before 30 January 2016.
227 Sub 42 Establishment - Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation Queensland QRC would like to have seen the Committee review the SCL criteria. Committee. The Committee’s functions will be to give the Minister independent scientific and technical advice Resources (Sub 42, Att p.22) about the administration of the Act relating to soil and land resources and other matters decided by the Minister. Council Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but before 30 January 2016. 227 Sub 50 LGAQ recommends that the wording of section 227 is amended so that Amending clause 227 from ‘may’ to ‘must’ would result in the Act being inoperable until such time as the Local the Minister must, rather than may, establish the committee.(Sub 50, p.2) committee is formerly established or if for some reason the committee did not meet the requirements of clause Government 228 (for example, where a committee member resigns). Association of Queensland Ltd. 227 – Sub 54 Science and Technical Implementation Committee- No response required. 231 Origin Energy Origin would like to place on the record its support for the provision enabling the establishment of a Science and Technically Implementation Committee to provide advice to the Minister. 228 Sub 26 SCL assessments to be undertaken by qualified persons. Recommend Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation ASSSI that a person assessing SCL or advising the Minister should be a certified Committee. The Committee’s functions will be to give the Minister independent scientific and technical advice practicing soil scientist stage 2 or above however notes concerns that about the administration of the Act relating to soil and land resources and other matters decided by the Minister. there are limited numbers of qualified individuals Clause 228 provides that the Minister may appoint a person as a committee member only if satisfied the person has experience or expertise in soil attributes and processes or another area of knowledge prescribed under a regulation. In accordance with standard government decision making, chapter 2, part 2 provides that the chief executive is the decision maker for deciding what is SCL. Clause 234(1) provides that the a decision maker can require and applicant to provide the decision maker an independent report by an appropriately qualified person, verifying information in an application or requiring additional information. Clause 236 (4) allows a decision maker to ask a submitter or anyone else for information relating to particular criteria or other relevant criteria in deciding an application. These provisions allow the chief executive to obtain appropriate expert advice as required. 228 Sub 52 Membership - Political lobby groups must not be allowed to appoint Clause 228(3) of the Bill provides that the Minister may appoint a person as a committee member only if Environmental scientists to the Science and Technical Implementation Committee. satisfied the person has the expertise or experience in soil attributes and processes or another area of Defenders We refer to the statement by Hon Rachel Nolan of 24 August 2011 knowledge prescribed by regulation. Office advising that the Queensland Resources Council and Queensland Farmers’ Federation will be appointing scientists to this committee. The independence and legitimacy of the Science and Technical 102 Environment, Agriculture, Resources and Energy Committee , Statutory Instruments Act 1992 and Acts Interpretation Act 1954 Drafting errors and other minor error may be amended prior to the Bill being passed by the Parliament. Clause 266 provides that no compensationNo is response payable required. because of the Act. Clause 236 is consistent withprovision. decision-making provisions in other legislation and is a standard administrative law Clause 237 is consistentAct with 2009. decision-making provisions in other legislation such as the Sustainable Planning Section 238 establishes themust ability be for the completed chiefgranted. prior executive to to the approveThe an environmental effect application of authority, subject the resourcecondition to provision has authority conditions therefore been is that or completed. that Ifnot development the be the authority approval granted, condition or or is being if development not it approval complied is will granted with will not the be authority be invalid or granted development until approval that must Clause 241 (1)exceptional of circumstances the decisions. Clause Bill 241information (2) provides allows the that the chief the chief executiveprojects meeting to chief executive the keep transitional executive in considers provisions the must under register the appropriate. keep any Bill. other This a registerClause could showing 241 include (2) the informationconsiders allows outcome appropriate. the about This of could chief include development soils executive information relating to to keep particular developments. in the register any other information the chief executive DERM comments Drafting conventions are establishedwhich by are administered the by the Office of Queensland Parliamentary Counsel. QFF believes projectsexceptional that circumstances have should(Clause 241). been be granted listed transitional on status the or decision register Decision register - Soil data collected should be made available to public databases Remotely sensed image reports - Section 249 refersintends to to a rely noticerelates to to prove stating section 250 that the and should aNo grounds be compensation statement deleted because on from of was section act which 249. incorrect. - We support That a clause 266. provision party Att p.22) Particular grounds for refusal generallyS237(2) not exhaustive - - This clause seemslimits even imposed broader in than S236(2). QRC 236(Sub recommends and 42, that Att it p.22) this is clause withoutGeneral be the power deleted. to impose conditions - Section 238 indicates thatpower a to power to "grantcomplied with decide before the an the application application applicationindicates is includes granted". that That subject a same the provision tothing power also extends the conditions to subject thatcomplied an of with ability must the before to application be theissues "approve subject here:- thing or to is grant conditions approved the - that you or grant must granted". an be approval Thereof an or are approval a cannot two request, be not imposed an before that application; approval and is - issued. conditions Section/Initiative/comment Comment/key point Implementation Committee will be questionedentitled if to political appoint members. lobby groupsApplication are of Part 2 - Section 232 needs toapplications be modified made to under clarifymake the that it that proposed part clear Act. only thatmade Such deals under the with a SPA part but modification mentioned doesapplies would in to not the the wording apply Bill of provisions. to sectionParticular A 264. criteria development similar generally applications comment not exhaustive - S236(2) - Givennumber that the of Actconsequences. areas, QRC already recommends ascribes this that sweeping this section powers clause be in risks deleted. a (Sub compounding 42, the unintended Council Environmental Defenders Office Sub 26 ASSSI Moreton Bay Regional Queensland Farmers’ Federation Council Moreton Bay Regional Council Queensland Resources Council Queensland Resources Moreton Bay Regional Council Submitter 266 Sub 52 242 249 Sub 27 241 – 241 Sub 37 238 Sub 27 237 Sub 42 236 Sub 42 232 Sub 27 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments 4 Comment/key point 269 Sub 37 Review of Act - Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but before 30 Toowoomba Engage with Council at the two year review. January 2016. Clause 269(2) provides that the review must include a review of provisions about the science and Regional technical implementation committee. Council The Minister at the time of the review will determine any further matters to be considered by the review and appropriate consultation. 269 Sub 42 Review of Act – Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but before 30 Queensland The discussion of the scientific committee refers to a two-year review January 2016. Resources [between 30 January 2014 and 30 January 2016]. QRC suggests that the Clause 2 of the Bill provides that the Act commences on the date of assent or 30 January 2012, whichever is the Council review date be set as 2 years after the date of assent, otherwise the later. As the commencement of the Bill could occur on either of these dates, clause 269 has been drafted to review could fall due in two parliamentary terms time. (Sub 42, Att p.22) cater for either commencement date.
269 Sub 50 Advice provided at the Stakeholder Advisory Committee Meeting, held on Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation Local 27 October 2011, identified that the Science and Technical Committee. Government Implementation Committee would be required to perform a review after Clause 229 sets out the functions of the committee which are to give the Minister independent scientific and Association of two years of the legislation being in effect. A specific review timeframe technical advice about the administration of the Act relating to soil and land resources and other matters decided Queensland should be identified in the legislation.(Sub51, pp.2-3) by the Minister. Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but Ltd. before 30 January 2016. The Minister will be able to request a report from the Committee to inform the review.
271 Sub 27 Regulation-making power - Section 13 of the Statutory Instruments Act 1992 provides that where the law requires or authorises a thing to be Moreton Bay Section 271 deals with issues that may be addressed in a Regulation. done by statutory instrument; a statutory instrument may be made for that purpose. Additionally subsection Regional Other provisions within the Bill make it clear that the scope of such issues 271(2) should not be read exclusively—its application is not to limit the regulation making power to only fees and Council is far more extensive than what is indicated in subsection (2). regulation offences. Therefore section 271 is read in conjunction with any other provision that requires or authorises a thing to be done by regulation to give the power to make that regulation. Subsection 271(2) provides the power for these requirements as there is not direct mention of them in the operational provisions such as s14(3) (prescribing an activity to have a permanent or temporary impact) and s95 (general requirements for application). 272 Sub 27 Definitions for Chapter 9 - Drafting errors and other minor error may be amended prior to the Bill being passed by the Parliament. Moreton Bay The definition of "permanent impact restriction" in section 272 needs to be Regional modified to replace the word "means" with "see". Council 272 – Sub 18 Transitional provisions - The SCL Bill does not contain any specific provisions in relation to the McFarland tenements (MDL 202). 282 QER Pty Ltd. Oil shale company seeking transitional status (McFarland tenements located between Mackay and Proserpine). Mineral Resources Act Specific provisions of the Mineral Resources Act 1989 (MRA) established a moratorium from 2008 until 17 imposed a moratorium on development on their tenements. State August 2028 during which the granting of a mining lease is prevented, and authorised activities on Mineral government review process underway – if these was not the case, would Development Licence 202 and associated exploration permits are suspended. Also, section 318ELAL(d) of the have met the transitional arrangements. MRA specifically provides that the moratorium does not limit or otherwise affect or suspend rights or obligations of the holder of the tenement under any other Act relevant to mining tenements. 272 – Sub 55 Transitional provisions - On 31 May 2011, the Government announced transitional arrangements for proposed coal, mineral, gas and 283 Macarthur Effective implementation of the promised transitional provisions relating to petroleum resource development projects that met certain milestones in the approvals process. Coal Limited projects including MCC’s Monto Coal Project is one of MCC’s key concerns with the SCL Bill. Specifically, the level of protection offered to Chapter 9 of the Bill gives effect to the policy outcomes identified in the Strategic cropping land—Transitional those projects that fall within the scope of Division 3 of Part 3 of Chapter arrangements factsheet released on 31 May 2011. 9 of the SCL Bill is far lower than industry expected on a reasonable interpretation of the policy documentation released by the Queensland 104 Environment, Agriculture, Resources and Energy Committee Strategic cropping land—Transitional Strategic cropping land—Transitional arrangements factsheet released on 31 May 2011. The fact sheet provided that eligible transition projects would arrangements be required to demonstrate thatminimise all and efforts mitigate have their been impact made on to SCL. avoid permanently alienation SCL and they avoid, On 31 May 2011,petroleum the resource development Government projects announced thatBill met transitional certain arrangements gives milestones for in effect the proposedfactsheet to approvals coal, released process. the mineral, on Chapter 9 policy 31 gas ofClause May outcomes and the 2011.The 278 identified Bill (2) in isrequirements is the generally that a consistent the with entire clarifyingrestriction. the Act provision fundamental will removing legislative apply principles. to allClause the or 281 application, (1)(b) part except date section ofsought is 93 to the not correct which this consistent is sub-clause. drafting with the error. The government’s permanent provision 31 impact May provides 2011 the announcement. Amendments will be DERM comments The structure of theprovisions. On provision 31 is May 2011,gas based the and on petroleum Government resource announced drafting development transitional convention. projects9 arrangements that The for met of proposed certain explanatory milestones coal, the notes in mineral, the clarify Bill approvals process. this Chapter gives and effect other to the policy outcomes identified in the . This “permanent impact restrictions” “reasonable endeavours to avoid, minimise affords no protection to thoserequirements, projects but that are otherwise meet located the in transitional the management area. Section 278 SCL has been linked,reasons and that which has willConsequently, turned any be possible out justification which not explainedargued could to for otherwise in have the be been elements more thethat of the case, detail retrospectivity Bill is for in is nowannouncements the outweighed inconsistent this (Section by with 4(2)(g) the submission. legitimatepolicy fact Legislative expectations Standards based announcements on Acttransitional policy 1992).’ created provisions The would a operateof in whether favour reasonable of they allareas. expectation were projects, It situated regardless was that in expectedthresholds, the the they that management would for area bethan those or subjected other projects protections to projects. that aprovisions This met on less the is projects time that transitional not fall consuming(which the within process Chapter includes case. 9, section The Part 281) 3are effect Division overlapped is of 3 by limited SCL a the Bill protection to transitional area. the Chapter 9, extent Part that 3 those Division 3 projects SCL Bill This section applies if the landa is protection identified area. permanently impacted landAn in environmental authority can only beit issued is for in the exceptional resources circumstances. activityIt if is not clearpolicy that and circular a cross number referencingthe of delivers QRC on members transitional the are intentrecommend concerned status that of that the the they intent they do ofrequiring have the the thought exemption project in to section theyand make 278 mitigate be impacts had. clarified on by strategic croppingTransitional land”. provisions - QRCAs would QRC’s now submissionretrospectivity states: to thebased ‘Provisions on commencement a introducing reasonable of expectationthe an that some policy element the announcements obligations Bill of with would were be which consistent the also with retrospective commencement Section/Initiative/comment Comment/key point Government. Transitional provisions -permanently Restrictions impact land on in a issuing ProtectionThe Area authority transitional - for provisionsprovides identified as for drafted transition are forcentres expansion very on projects. complex. thephrase The interpretation Section effect is of of defined 278 this in(page section 156). schedule 2, Section page9, 272 which is 190 a itself as definition then referringparts: for refers to the to purposes Section Section only 272 9393 of Restrictions (page Chapter on 61). issuingland Section in authority 93 protection for area has identified two permanently impacted Macarthur Coal Limited Sub 55 Sub 42 Queensland Resources Council Submitter 272 – 283 272 – 293 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments 6 Comment/key point Bill states that, ‘The permanent impact restriction does not apply for an environmental authority application and its related resource application if they are excluded under this division.’ By definition, the ‘permanent impact restriction’ applies only to land identified in a protection area (see section 93 SCL Bill). Therefore, for projects that fall within the management area and the scope of Chapter 9, Part 3, Division 3 SCL Bill (including MCC’s Monto Coal Project), the SCL Bill offers no protection for the future development of these projects. The current operation of the transitional provisions creates a significant financial impact to MCC that was not anticipated (due to the reasonable belief that projects such as the Monto Coal Project would be afforded a facilitative benefit under the transitional provisions). Delay to the Monto Coal Project that will arise as a result of strategic cropping land assessment requirements represent significant costs to MCC. Additionally, the outcomes of that assessment may result in resource sterilisation. The Monto Coal Project meets the transitional thresholds. It should be protected from this harm. Particularly, aspects of the Monto Coal Project covered by section 281(1)(b) of the SCL Bill include mining lease 80175 and any future mining lease applications out of exploration permits for coal 613 and 683 certified before 23 August 2012 (noting the typographical error the Department has confirmed exists in s. 281(1)(b) which inaccurately refers to 23 August 2010). MCC can provide further information outlining the potential impacts on the Monto Coal Project on a commercially confidential basis if that is required. In reliance on the expectation born from the previous policy announcements, investment decisions have been made for this project (and others) that did not anticipate these additional costs. It is proposed as an alternative to section 278(2) SCL Bill that projects that fall within Chapter 9 Part 3 Division 3 are subject to an environmental authority condition requiring (as set out in the relevant policy statements) that the holder use reasonable endeavours to avoid, minimise and mitigate impacts on strategic cropping land that exists in the project area. 272 – Sub 20 Chapter 9, Division 3 “Exclusion of permanent impact restriction for On 31 May 2011, the Government announced transitional arrangements for proposed coal, mineral, gas and 285 Cotton particular applications”- petroleum resource development projects that met certain milestones in the approvals process. The Australia Finally, Cotton Australia is very concerned that transitional arrangements, announcement provided that those projects eligible for transitional arrangements but which had not already such as that offered to the Springsure Creek coal project, not only obtained final environmental approvals would still be required to avoid, minimise and mitigate their impacts on immediately reduces the amount of land protected by SCL, but also strategic cropping land and meet all other legislative requirements necessary for the development. Chapter 9 of undermines public confidence in the ability of SCL to provide ongoing the Bill is consistent with the 31 May 2011 announcement. On 23 August 2010, the Government released protection. Protecting Queensland’s strategic cropping land: A policy framework which provided that ’in the rare and unlikely This concern also extends to the exceptional circumstances provisions, event, where a proponent can demonstrate that: for development under the resources legislation, the resource which can still allow development on Protected Land. (Sub 20, p 4) exists nowhere else; or, for development assessed under the SPA, it cannot occur anywhere else other than on strategic cropping land, the Minister may designate the project as a Excepted Development (with conditions), provided there is a significant community benefit. Part 4 of the Bill provides the framework for deciding whether a project has exceptional circumstances. Projects in a protection area that are determined to meet the exceptional circumstances provisions in the Bill must still avoid, minimise and mitigation any impacts on SCL or potential 106 Environment, Agriculture, Resources and Energy Committee , Statutory Instruments Act 1992 and Strategic cropping land—Transitional arrangements Acts Interpretation Act 1954 —The August 2010 framework was presented at nine community forums on coal —The Government hosted community information sessions on the discussion paper. —The Government released Protecting Queensland's strategic cropping land: A policy —The Government released a discussion paper on conserving and managing food-producing —A Stakeholder Advisory Committee was formed (including representatives from the agriculture, —The Government released the proposed criteria for identifying SCL, a technical assessment —The Government announced implementation of the SCL policyt through Protection Areas and a 23 August 2010 framework (August 2010 framework) for publicAugust–September consultation. 2011 seam gas in south-west Queensland. 14 April 2011 report and independent expert review report31 of May the 2011 proposed criteria. Management Area, released thefor transitional public arrangements, consultation. and released a Regulatory Assessment Statement Refer to DERM comments provided on submission 43. On 31 May 2011,petroleum the resource development Government projects announced thatBill met transitional certain arrangements gives milestones for in effect the proposedfactsheet to approvals coal, released process. the mineral, Chapter on 9 policy gas 31 ofclause. outcomes and the May The identified provision 2011. provides in Clause93 the 278 the which requirements (2) is that the is the permanentis entire a impact not Act clarifying restriction. within will the The provision control apply structure removing ofThe of to the consultation all the the department. undertaken provision application, or in is except part developing basedon section the of on SCL the drafting the policy convention Strategic sub- and and Committee legislation Cropping and is submitted Land outlined to in Bill the the CommitteeThis 2011 Consultation by consultation Briefing DERM has prepared on included for 4 the November following: February the 2011. 2010 Environment, Agriculture,land Resource for public and consultation. Energy February 2010 resource and urban development sectors,meet local regularly government since and its natural formation. resourceFebruary–March management 2010 groups) and has DERM comments SCL and will be assessed underDrafting Chapter conventions 3 of are the established Bill. which by are administered the by the Office of Queensland Parliamentary Counsel. “reasonable endeavours to avoid, minimise and mitigate too long inlegislation for my a opinion. couplecommunitites of years alike – We but landholders,ahead have at resource despite a companies rapid all this and rate inLandholders known resource an have attempt about to companies been beat lobbying this therather have government. the than impending forged government later to andrewarded take yet for action in sooner black blatantlylegislation. and forging white a ahead single with company is a being total disregard for this industry concerns, but the QRC’sindustry recommendation concerns has evolved with todivision the reflect transitional 3) provisionsMacarthur projects. submission for (number 056) expansion that theproject (S278 The intent make be made recommendation clearimpacts that on the would SCL”. nowExclusion - reflect the Wording of these exclusions isoutcome not described sufficiently in the robust Government’s to278(2). transition deliver QRC factsheet the – policy recommends specifically impact deleting restriction the applies phrase forp.23) the “apart applications” from from permanent 278(2). (Sub 42, Att Transitional arrangements - How long has it taken the government to bring in this legislation? Way Section/Initiative/comment Comment/key point Act generally applies forsection all 274 applications refers whenever to a madeor "source - an application" approval Note being can 2 granted. be Only within granted. a request Transitional provisions - Two: Section275 and S278:attachment one of our QRC’s Novemberrecommended recommend-ations 4 submission on is that entirely page wrong.restrictions 23 the We applies“ of had be phrase deleted,transition “apart when mechanisms in from factrecommendation. apply. this While the is the central permanent QRC to QRC impact how comment the would is still like accurate to in noting withdraw this Sub 19 Megan Baker Sub 42 Queensland Resources Council Council Moreton Bay Regional Council Sub 42 Queensland Resources Submitter 275 – 283 275 – 278 275 & 278 274 Sub 27 Cl.
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0 Cl. Submitter Section/Initiative/comment DERM comments 8 Comment/key point 5 August 2011—A draft State Planning Policy was released for public consultation. 24 August 2011—The Government announced there would be a Science and Technical Implementation Committee. 8 September 2011—Guidelines for applying the proposed criteria at a property level were released, as well as an online mapping tool. 27 September 2011—The Government announced that legislation would be introduced into Parliament in late October 2011, and released further information on mitigation arrangements. The Bill is consistent with previously announced government policy. On 31 May 2011, the Government announced transitional arrangements for proposed coal, mineral, gas and petroleum resource development projects that met certain milestones in the approvals process. Chapter 9 of the Bill gives effect to the policy outcomes identified in the Strategic cropping land—Transitional arrangements factsheet released on 31 May 2011. 279 Sub 41 Applications made and finalised EIS TOR on or before 31 May 2011 - It seems likely that the key point in this submission refers to clause 281. The date in clause 281 (1)(b) is Queensland Has a date error which sets a deadline for applications of 23 August inconsistent with the Government’s 31 May 2011 announcement. Amendments will be sought to correct this Law Society 2010, which should have been 23 August 2012, according to a factsheet. drafting error. (Sub 41, p.4) 279 Sub 42 QRC is concerned the same erroneous deadline of 23 August 2010 Clause 279 (b)(i) is consistent with government’s 31 May 2011 announcement Queensland appears to have been applied in section 279(b)(i) in relation to the Resources certificate of application. Once again, QRC would hope that this section Council would be amended to be consistent with S281(1)(b) so that the Bill aligns with the Government’s May 2011 fact sheets on transitional mechanisms. (Sub 42, p.3) 279 Sub 42 Applications made and finalised EIS TOR on or before 31 May 2011 - Clause 279 is consistent with the Government’s announcement. It seems likely that the key point in this Queensland S279(b)(i) - In the policy, QRC understood that there would be a period in submission refers to clause 281. Resources which the certificate could be issued by August 2012. (Transition fact Council sheet). QRC recommends that this clause be amended to allow for a period for the certificate of application to be issued to match S281(1)(b) below. (Sub 42, Att p.23) 279 Sub 42 Transitional provisions - Refer to DERM comments provided on submission 43. Queensland Three: S279(b)(i)-QRC’s submission calls out a typographical error in this Resources section’s deadling of 31 May 2011, when that is the deadline that was set Council in the factsheet on transitional matters. QRC would like to withdraw the comment on page 23 of attachment one of the 4 November submission. 279 Sub 43 This date should be the date when the strategic cropping policy and The Government announced on 31 May 2011 its intention to include transitional arrangements for proposed Qld Murray - legislation development process was announced the then Minister coal, mineral, gas and petroleum resource development projects that met certain milestones in the approvals Darling Stephen Robertson who stated that it was the government’s intention that process in new SCL legislation. The transitional arrangements were to apply to projects that had met certain Committee developments would abide by the spirit of the proposed legislation. It milestones as at 31 May 2011. Clause 279 of the Bill is consistent with the Government’s announcement. Inc. should be noted that the Trigger maps have remained virtually unchanged since that announcement. 279 – Sub 42 The transition provisions don’t recognise the Government’s 2008 decision The SCL Bill does not contain any specific provisions in relation to the McFarland tenements (MDL 202). 282 Queensland on oil shale and the McFarlane tenure. Part 7AAB of the Mineral Resources Resources Act imposed a moratorium on development of QER’s Specific provisions of the Mineral Resources Act 1989 (MRA) established a moratorium from 2008 until 17 Council McFarlane tenements. Section 318ELAD provides that during the August 2028 during which the granting of a mining lease is prevented, and authorised activities on Mineral 108 Environment, Agriculture, Resources and Energy Committee DERM will recommend clarifying amendments to this provision. government’s approach to protectingproponents to the will take state’s the best framework into cropping account in land progressing resources, theirThe developments. and 31 that May Governmentarrangements for expect 2011 new and announcement undecidedthe resource by announcement development projects, of the a the Regulatory implementationStrategic then Assessment Cropping of Statement, Management the Minister and Area. SCL Kate policyClause through 281 Jones, Strategic of Cropping included the Protectionarrangements Bill for Areas the expansion and is projects. release a consistent with of government’s transitional 31 May 2011 announcement inClause regards 281 to of transitional thearrangements Bill for expansion is projects. consistent with government’s 31 MayClause 2011 281 (1)(b) announcement date insought is regards to not correct to this consistent transitional drafting with error. government’s 31 May 2011 announcement. Amendments willClause be 281 (1)(b) datesought is to not correct consistent this with drafting error. government’s 31 May 2011 announcement. Amendments will be DERM has recommended that this error is corrected by amendment of the Bill. DERM comments Development Licence 202 and associated exploration permits are suspended. Also, section 318ELAL(d) specifically providesrights that or the obligations moratorium of does the not holder of limit the or tenement otherwise under affect any or other suspend Act relevant to mining tenements. ) transitional provisions – the Bill sets a deadline for same tenure holder heldEP both or the MDL production on tenure 23 and August the 2010. continuous The legislation needs to recognise the applications ofdeadline 23 as August 23 Augustwill 2010, 2012. be DERM whereas has subjectMinister assured the for to QRC natural fact that resources, an Hon this RachelExisting sheets…set amendment section Nolan mining MP. lease to the and EP be orS281(1)(b) MDl – moved forming in a the in contiguous policy area23 decision, committee - August this deadline 2010]. by was QRC 23 the understandsand August will that 2012 be [not this corrected. is (Sub just 42,Existing Att a mining p.23) lease typographical and error EP orS281)(c) MDl - forming a The contiguous definition areacommon - of tenure to holderarrangements. hold will Further, be tenure very thebeing important through held test as within company it as joint groups. is tenures For drafted venture example, it does to is and common notownership. practice be for other envisage QRC held suggests tenure collective that by the test different should companies be that who substantially all the have common Existing mining lease and EP orExisting MDL forming mining a contiguous leases areaacquisitions - after forming the announce-ment contiguous dateeg as CS areas it Energy would purchase should cause of MDL aThis at not loophole clause Haystack – needs Road include toin be the reviewed legislation as this will not protect SCL ifExisting included miningS281(1)(b) lease has a and dateAugust EP error 2010, which or which sets a shouldfactsheet. MDL deadline have (Sub for been forming 41, applications p.4) 23 ofErrors a August - 23 2012, contiguous accordingS281(1)(b to area a Section/Initiative/comment Comment/key point moratorium a miningstatus tenement quo cannot ofmoratorium, be QER the granted, would have tenements but31 finalised otherwise May are an EIS 2010 the preserved. terms andthat of been In the reference eligible Bill before the for amend the transitionalprovisions absence MRA of provisions. Part to QRC of 7AAB. specifically (Sub suggest include 42, the Comments SCL Att as in p.24) above. the status quo On 23 August 2010, the Honourable Stephen Robertson released the SCL policy framework outlining Council Queensland Resources Council Queensland Resources Law Society Queensland Resources Council RoadCommittee Coal LindsayAvriel Tyson & Queensland Darling Committee Inc. Haystack Qld Murray - Submitter 281 Sub 42 281 Sub 42 281 Sub 42 281 Sub 41 281 Sub 40 281 Sub 30 280 Sub 43 Cl.
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1 Cl. Submitter Section/Initiative/comment DERM comments 0 Comment/key point tenement application being held by the holder of the adjoining ML, or …held by a related body corporate(s) (within the meaning of the Corporations Act) of the holder of one of the holders. (Sub 42, Att p.23) 282 Sub 15 Provision for future environmental authority or mining lease relating to Transitional arrangements established under clause 279 of the Bill require the development proponent to hold a Bandanna EPC 891 - certification of application for the mining lease, or equivalent requirements for a petroleum lease application. The Energy Amend clause 282 to say- “any environmental authority application and certificate of application references the lease application made by the development proponent, which must state any related resource application for a mining lease relating to EPC 891 the resource activities that are to be carried out should the lease be granted (section 245(1) of the Mineral resulting from the finalised EIS TOR published on 2 June 2011 is Resources Act 1989). The reference in clause 282 (2) of the Bill, therefore places EPC 891 in the same position excluded." as the transitional projects under clause 279, which is to reference the resource activities identified at the time Claim that current drafting of the clause 282(2) applies to the exclusion of the transitional arrangement was granted. The reference in clause 282 (2) to the resource activities identified in all resource activities under the EIS and therefore does not place the the finalised EIS terms of references for the Bandana Energy development proposal equates to the resource project in the same position as section 279 projects. activities referenced in the certificate of application for clause 279 transitional arrangement projects. 282 Sub 37 Transitional arrangements and exceptional circumstances: QFF believes Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to Queensland the transitional arrangements provided for under the Bill are generous to EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Farmers’ the point of devaluing the enduring impact this legislation will have. The conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on Federation arrangements are not transparent in that neither the community nor the land from underground coal mining must be used. affected industries can clearly observe the status of existing projects or the basis upon which transitional status was granted. This is particularly The Bill is consistent with public statements made by the Government relating to EPC 891. the case with respect to Clause 282 (EPC 891). To show faith in the intent of this Act, QFF requests the Government reviews the conditions that will be applied to all projects provided transitional status and ensures that new conditions be applied to deliver upon the principles of this legislation. As aforementioned QFF also submits that development projects being granted either transitional status or exemptions or categorised / regulated for state significance should be listed on the Decision Register. 282 & Sub 19 Provision for future environmental authority or mining lease relating to Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Megan Baker EPC 891 - EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Springsure Creek should not be excluded from the SCL Bill. Clauses 282 conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on and 283 should be deleted. the land from underground coal mining must be used. Similar issues to submission no. 006. The Bill is consistent with public statements made by the Government relating to EPC 891. 282 & Sub 6 Provision for future environmental authority or mining lease relating to Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Central EPC 891 - EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Queensland’s Springsure Creek should not be excluded from the SCL Bill. Clauses 282 conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on Golden and 283 should be deleted. Breach FLPs. Project does not fall within the land from underground coal mining must be used. Triangle transitional provisions—Mining development licence application only The Bill is consistent with public statements made by the Government relating to EPC 891. made to mining registrar on 17 October 2011. – no certificate of application yet received. No assessment done on the extent the project may result in subsidence. No evidence that cropping land of this type in Australia has been, or can be fully rehabilitated after longwall mining. Written assurance provided by Bandanna has not been made available. Bandanna was always an underground mine and despite Min Nolan’s comments, no concession was made to change from open-cut to underground. Direct financial benefit to a company by including clauses 110 Environment, Agriculture, Resources and Energy Committee the land from underground coal mining must be used. The Bill is consistent with public statements made by the GovernmentClauses relating 282 to EPC and 891. 283EPC of 891 the Bill from doconditions the on not any exclude requirements future any development ofthe which future land the include environmental from that underground authority Act. all coal or reasonable mining TheseThe endeavours mining must Bill to clauses be is lease rehabilitate used. consistent relating all provide with impacts public to specific on statements made transitional by the arrangements Government relating and to EPC 891. Government relating to EPC 891. Clauses 282 and 283EPC of 891 the Bill from doconditions the on not any exclude requirements future any development ofthe which future land include the environmental from that authority Act. all underground or reasonable coalGovernment These endeavours mining mining relating to must clauses to lease rehabilitate EPC be relating all provide 891. used. impacts to Clauses The specific on Bill 282 transitional is and consistent 283 arrangements withEPC of public and 891 the statements made Bill from by doconditions the the on not any exclude requirements future any development ofthe which future land include the environmental from that authority Act. all underground reasonable or coalGovernment These endeavours mining mining relating to must clauses to lease rehabilitate EPC be all relating provide 891. used. impacts to Clauses The specific on Bill 282 transitional is and consistent 283 arrangements withEPC of public and 891 the statements made Bill from by doconditions the the on not any exclude requirements future any development ofthe which future land the include environmental from that underground authority Act. all coal or reasonable mining TheseThe endeavours mining must Bill to clauses be is lease rehabilitate used. consistent relating all provide with impacts public to Clauses specific on statements 282 made transitional by and the 283 arrangements GovernmentEPC of relating and 891 to the EPC Bill from 891. doconditions the on not requirements any exclude future of any developmentthe which future the land include environmental from Act. that underground authority all coal reasonable or miningThe endeavours These mining must Bill to be is lease clauses rehabilitate used. consistent all relating with provide impacts public to Clauses on statements specific 282 made by transitional and the 283 arrangements GovernmentEPC of relating and to 891 the EPC Bill 891. from doconditions the on not any exclude requirements future any development ofthe which future land include the environmental that from authority Act. all underground reasonable or coal TheseGovernment endeavours mining mining relating to clauses must to lease rehabilitate EPC be all relating provide 891. used. impacts to Clauses The specific on Bill 282 transitional is and consistent 283 arrangements withEPC of public and 891 the statements made Bill from by doconditions the the on not any exclude requirements future any development of which future include the environmental that authority Act. all reasonable or These endeavours mining to clauses lease rehabilitate all relating provide impacts to specific on transitional arrangements and DERM comments Clauses 282 and 283EPC of 891 the Bill from doconditions the on not any exclude requirements future any development ofthe which future land include the environmental from that authority Act. all underground reasonable or coal These endeavours mining mining to must clauses lease rehabilitate be all relating provide used. impacts to The specific on Bill transitional is consistent arrangements with public and statements made by the EPC891 - Springsure creek exemptions should be deleted Provision for futureEPC environmental 891 authority - orDelete mining these lease provisions relatingCreek from to project the did not Bill meetgoing on the to transitional be the arrangements an basis and undergroundbe was project. that always The subject the Springsure to Creek Springsure projectfrom SCL exclusion should legislation. from the SCL legislation. AnSimilarly individual question project shouldBandanna the Energy. not special benefit transitional arrangements granted to EPC 891 - Springsure Creek should not beand excluded 283 from should the be SCL deleted. Bill.Similar issues Clauses to 282 submission no. 006 Provision for futureEPC environmental 891 authority - orSpecial mining lease exemptions relating incompanies to against oath the of MPs. Bill with benefitTransitional provisions to - privateDelete individuals provisions or forprinciples of the Springsure SCL legislation creek because they contradict the Provision for future environmental authority or mining lease relating to Section/Initiative/comment Comment/key point 282 and 283 in the Bill. Provision for futureEPC environmental 891- authority orSpringsure mining Creek lease should not relating beand to excluded 283 from should the be deleted. SCLSimilar Bill. issues Clauses to 282 submission no. 006 Provision for futureEPC environmental 891 authority - orSpringsure mining Creek lease should not relating beand to excluded 283 from should the be deleted. SCL Bill. Clauses 282 Provision for future environmental authority or mining lease relating to Sub 38 Trevor and Di Berthelsen & family Sub 32 Bendee FarmingLtd. Pty Sub 29 Sally Sullivan Sub 14 Paul Murphy Sub 25 P.R. Ingram Sub 13 Adam Sullivan Sub 8 Arcturus Downs Sub 11 Jackie Wells Submitter 282 – 283 282 & 283 282 & 283 282 & 283 282 & 283 282 & 283 283 282 & 282 & 283 Cl.
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1 Cl. Submitter Section/Initiative/comment DERM comments 2 Comment/key point 282 & Sub 40 It is not acceptable under any circumstances to introduce legislation that Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Lindsay & clearly benefits an individual company. S282 & S283 should not be EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Avriel Tyson allowed. conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on the land from underground coal mining must be used. The Bill is consistent with public statements made by the Government relating to EPC 891. 282 & Sub 38 Questions the justification for and strongly opposes the exclusion of the Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Trevor and Di Springsure Creek Coal Project EPC 891 in this strategic cropping land EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Berthelsen & legislation. We seek the deletion of these clauses from the Bill. conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on family the land from underground coal mining must be used. The Bill is consistent with public statements made by the Government relating to EPC 891. 282 & Sub 44 Future mining lease relating to EPC 891 - Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Agforce SCL protection conditions imposed EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and AgForce is also seeking information from this Committee’s inquiries as to conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on the validity of s.282 and s.283 of the proposed Bill, pertaining to the the land from underground coal mining must be used. exclusion of EPC891 (the Bandana Coal Project) from the SCL proposed The Bill is consistent with public statements made by the Government relating to EPC 891. legislation regarding the finalised terms of reference as being published on 2 June 2011 – three days after the release of the SCL policy intent that has formed the basis of this Bill. AgForce is extremely concerned regarding the processes behind which this deal has been undertaken and we seriously question the validity of the SCL policy platform when the first time it was been tested, it appears to have failed to protect strategic cropping land under the definitions of criteria and timeframes outlined in the documentation. (Sub 44, p.4) 282 & Sub 35 There is evidence in this area [Springsure] that open cut mining causes Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Sharon & Mike subsidence (example Gordon Downs- used to be the largest organic farm EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Wagner in the Southern Hemisphere - and is now practically a wasteland). conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on Opposed to transitional arrangements for the Springsure Creek Coal the land from underground coal mining must be used. Project. Questions government’s assessment of the project. The whole SCL Policy has to date been nothing but a joke! The Qld Govt is The Bill is consistent with public statements made by the Government relating to EPC 891. continually changing the barriers to suit themselves as each situation arises. Queenslanders, and landholders need certainty. There must be NO mining on SCL, organics and Animal Refuge areas, nor where there are endangered species (example Brimblebox). Once destroyed, it is permanently or for at least centuries. 282 & Sub 46 The Springsure Creek Coal Project (EPC 891) should not be excluded Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Doug & from the Strategic EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Tahnee Tyson Cropping Land legislation and Clauses 282 and 283 should be deleted conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on from the Bill. (Sub 46, p.1) the land from underground coal mining must be used. The Bill is consistent with public statements made by the Government relating to EPC 891. 282 & Sub 47 The Springsure Creek Coal Project (EPC 891) should not be excluded Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to 283 Ann Hobson from the Strategic Cropping Land legislation and clauses 282 and 283 EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and should be deleted from the Bill. There is no justification for the special conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on transitional arrangements given to Bandanna Energy and the inclusion of the land from underground coal mining must be used. clauses 282 and 283 in the legislation: this is not a project of state or The Bill is consistent with public statements made by the Government relating to EPC 891. 112 Environment, Agriculture, Resources and Energy Committee …rehabilitate all ”, reading this provisions in conjunction with clause 23, it is , such as through subsidence... [emphasis added]. strategic cropping land As the purposes ofthat the land, Bill the relate effect towhich of the strategic clause decision cropping 23 applies. land Therefore, ofimpacts and while on the the clause the Bill 283 management land is (3) from ofclear underground requires that development that coal the a impacts the mining… holder reference on requirements of tofrom on EPC the land the 891 underground is to resource mining “ authority referring activity.be holder to Clause treated is SCL 283(4) as to is SCL or rehabilitate simply protection potentialSCL all defining conditions SCL that for impacts protection to the the to conditions purpose “conditions” the of inimpacts) SCL (such may the clause that be whole 283 as applied result Act. are provided Clause avoid to they 283(5) do and provides not that minimise over-ride any the other the conditions in impacts clause 283(2) on and 283(3). SCL Clauses and 282 mitigate any permanent Clauses 282 and 283EPC of 891 the Bill from doconditions the on not any exclude requirements future any development ofthe which future land the include environmental from that authority Act. all underground or reasonable coal TheseGovernment endeavours mining mining relating to clauses must to lease rehabilitate EPC be relating all provide 891. used. impacts to In The specific on establishing Bill transitional the is consistent special arrangements with transitionalidentified public arrangements and that statements for the made the legislative by Bandana provisionsthe the Energy relating project to project EPC the 891, development bedevelopment the would of government include implemented open-cut two operations; particular asnecessary and conditions: contouring that that and an Bandana laser Energy levelling, undergroundat to must Springsure rehabilitate use Creek coal the all on effects reasonable of project any endeavours, impact including without of the scope underground coal project for future consideration of DERM comments Coal project is evaluated under the full provisions of the SCLProvision Bill for futureEPC environmental 891 authority - orAmend mining clause lease 283 relatingauthority (3) to to that sayrehabilitate its - the it effects holder ismining of carried a must the out condition underlimited use impact of the to the on the lease. all environmental SCL rehabilitation ClaimSCL, of not reasonable that from all the the land. underground effect endeavours conditionSuggest on coal delete should underground clause to be 283(4) coal and miningconditions (5) on to as be these provisions imposed allowwith on additional the the Treasurer’s projects letter of and 6 are June said 2011. to be inconsistent community consultation. Bandannaholes have in not aexisting rehabilitated timely government exploration manner legislation.introduced to – The Parliament does legislation clearly not showof in demonstrating any prime commitment its their agricultural to the land. current disregardintroduce protection It form legislation to not as acceptable thatinclusion under clearly any of circumstances benefits clause to fundamental an 282 principles of individual and the company. 283 legislation.of There reclamation The are is by no a basisinto Bandanna complete play for Energy. when the contradiction looking claims at ofassuming rehabilitation Commercial options. that the There viability the is subsidence no must canof justification be come this for overcome anywhere in – Australia there areProvision no for examples futureEPC environmental 891 authority - orRemove mining this lease provision from relating the Bill to and require that the Springsure Creek Section/Initiative/comment Comment/key point public significance;development; this this project is didMay not not 2011; have a an a final applicationto terms project for of the a reference in Mineral mining on Development registrarBandanna 31st an Licence on Energy was advanced 17th made have OctoberMineral stage not 2011. Development received As of Licence of a(Qld). under today certificate Despite the 03.11.2011, of public Mineralunderground application statements Resources project for to - Act a Policy there the 1989 by was Bandanna contrary Energy no thisunderground. through show a This always change of is of was commitmentonce a plans been an decision to from to open made visit the cut the bydespite SCL to area a and numerous get government an invitations. who appreciation have for Bandanna what not is Energy at stake have – not done any Energy Fitzroy Basin Association Bandanna Submitter 283 Sub 15 283 Sub 4 Cl.
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1 Cl. Submitter Section/Initiative/comment DERM comments 4 Comment/key point and 283 are consistent with the Government’s policy announcement on transitional provisions and the special transitional arrangements for Bandanna’s Springsure Creek proposal. 283 Sub 48 SCL protection conditions imposed - Clauses 282 and 283 of the Bill do not exclude any future environmental authority or mining lease relating to FutureFood We are concerned and object to the transitional arrangements granted to EPC 891 from the requirements of the Act. These clauses provide specific transitional arrangements and Queensland holders of EPC891 (Springsure Creek Coal Pty Ltd). Their Terms of conditions on any future development which include that all reasonable endeavours to rehabilitate all impacts on Reference for the Impact assessment Statement was delivered outside the land from underground coal mining must be used. the 31st May exclusion timeframe. This is totally unacceptable to the local community, and does not do justice to the intent of the legislation. (Sub The Bill is consistent with public statements made by the Government relating to EPC 891. 48, p.2) FFQ recommend that the committee strikes out S283 dealing with Springsure Creek mining lease EPC 891. (Sub 48, p.3) 285 Sub 7 Major renewable energy projects as exceptional circumstances - Clause 285 provides for major renewable energy projects to be prescribed as development in exceptional GE Energy Remove the condition on minimum size of a renewable energy generation circumstances under clause 113 of the Bill. Development under the Geothermal Acts was identified as being project – this would be consistent with the Land Act 1994 subject to the proposed policy framework which was released on 23 August 2010 (Protecting Queensland’s strategic cropping land: A policy framework). The Government's policy was to except major renewable energy projects as exceptional circumstances. Major renewable energy projects are the only developments automatically excepted in the legislation, the removal of a threshold (ie 30 MW) from the provision would mean that any renewable energy project would be excepted. In determining what should constitute a major renewable energy project, consideration was given to the following: The level of generation requiring an authority under the Electricity Act 1994 which is 30 MW. The National Electricity Rules also recognise 30 MW as a threshold size at which a generator may have a significant impact on power system operations and the electricity market and, while the Australian Energy Market Operator automatically exempts generators of less than 5MW from registration under the Rules, it may exempt generators of up to 30MW. Generators of over 30MW are regarded as significant under all these regulatory arrangements. The Australian Bureau of Agricultural and Resource Economics and Sciences (ABARES) uses a greater than 30 MW threshold for its reporting on major renewable energy projects. Individual renewable energy projects that do not meet the definition under clause 285 can still apply for exceptional circumstances under clause 115 of the Bill. 285 Sub 7 Major renewable energy projects as exceptional circumstances - The renewable energy sources defined are largely consistent with provisions in the Commonwealth Renewable GE Energy Replace definition of renewable energy source with definition of ‘eligible Energy (Electricity) Act 2000. Hydro and marine sources of renewable energy have not been included in clause renewable energy source’ provided for in section 17 Renewable Energy 285 as the Bill relates development on land (cropping land). Geothermal renewable energy sources have not (Electricity) Act 2000 (Cth) been included in the definition under clause 285 of the Bill. The August 2010 framework (Protecting Queensland’s strategic cropping land: A policy framework) provided that the strategic cropping land legislative framework would apply to resources legislation including the Geothermal Exploration Act 2004 (the Geothermal Energy Act 2010 was passed by Parliament after the release of the SCL policy framework). Clause 113 of the Bill provides that a regulation may prescribe a type of development to be in exceptional circumstances. The clause specifically allows for resource activities under the Geothermal Exploration Act 2004 or the Geothermal Energy Act 2010 to be prescribed in future as a type of development to be in exceptional circumstances. 285 Sub 42 Provision for prescribing major renewable energy projects as The approach identified in Clause 285 of the Bill is consistent with the Government’s policy statements outlined Queensland development in exceptional circumstances - in the policy framework for strategic cropping land released in August 2010. The policy framework provided that Resources S285(2) - QRC can see no reason to exclude geothermal as a renewable the strategic cropping land legislative framework would apply to resources legislation, including the Geothermal Council energy source. QRC recommends that the definition is amended to Exploration Act 2004 (the Geothermal Energy Act 2010 was passed by Parliament post the release of the SCL include geothermal energy. (Sub 42, Att p.24) policy framework). Clause 113 of the Bill provides that a regulation may prescribe a type of development to be in exceptional circumstances. The clause specifically allows for resource activities under the Geothermal 114 Environment, Agriculture, Resources and Energy Committee triggers. Sustainable Planning Regulation 2009 to be prescribed in the future as a type of development Geothermal Energy Act 2010 or the and 291 of the Bill. The comment provided is aprovision matter of is interpretation clear and the inunder provision that the as Sustainable feedlotting drafted Planning is is Regulation appropriate. 2009 excluded The from intent SCL of or this potential SCL concurrence agency jurisdications following areas: an areapurposes; zoned an under area a described planningkey as resource scheme urban area; for footprint and where urban, under noIn a rural proposed these regional residential lot containing plan areas or SCL or future subdivision orregional State potential plan. rural may SCL planning residential is occur regulatory under provision; as 15haThe in a per area size. sizes the identified requirements inthe clause of triggers 290 the for of referral the localSCL. Bill to government that the planning amend concurrence the scheme agency Sustainable for or Planning assessment. Regulation They 2009 provide are not minimum areas forClause protecting 269 of theJanuary Bill 2016. requires the The review Minister of to clause review 290 could the be Act's addressed operation in this after review. 30 January 2014, but before 30 On 5 AugustGovernment 2011, is currently the consideringclause Government 80 submissions of released received the Bill. aDefinitions and Clause in a draft 291 the final SPP, provides State wherever exemptions SPPdefinitions possible, from under Planning will will the the SPA, be be Policy SP consistent prepared Regulation with for and as definitions Queensland public in required Planning the Provisions by consultation. Bill. have Where been The possible, used existing for clauses 290 DERM comments Exploration Act 2004 to be in exceptional circumstances. The State Government will havelot a containing role SCL in or assessing potential developmentSPP. SCL applications The is for State under subdivision 15ha Government where in a will size. proposed not Assessment have will be a against role the in provisions assessing of development the SCL applications for subdivision in the removal of the words "any of" would clarify that intent. be reviewedCommittee either or at by the sameadministration time of the as the Strategic the Cropping Science Minister LandInsertion requests Act. of advice and Sub new about 50, Schedule the p.3) 13A Technical - The list Implementation ofagency "excluded jurisdiction" matters containedexemptions for appearing in in SCL Annex section 1 of or the 291 draft potential SPP. differs SCL from concurrence the listInsertion of new of Schedule 13A - The listing for "intensivethe animal exemption industries" in appliesfeedlotting". section "...to This 291 implies the that indicates so that extentare long as feedlotting, that some of all any the"excluded industries of of on matters". the the the site Clearly intensive industries that animal are is industries not on the the intent land of the are provision and landscape values soprotected that fragmentation and is thereprotection. avoided. All should SCL beThe should be Association no fully minimumLand supports area the Policy assigned intentiondevelopments, not of to or to the that thoseprimary Strategic capture developments Cropping production small-scale associatedviability. and The developments, with concept of considered / clustered lowAdvisory development, necessary raised ancillary impact Committee at the to to Stakeholder Meeting,supported. Specifically, achieve held section on financial scale 290 of 27 of development September thethat under will Bill the 2011, require Sustainable identifies assessment is Planningi.e. the under Regulation also the development type 2009 strategic triggers. and croppingtriggers land The principles as LGAQgovernment suggests proposed move that toward are regulatory the reform development appropriate; suggests that these however triggers given the current Section/Initiative/comment Comment/key point Amendment of Schedule 7 (referral agenciesObject and to their planning laws jurisdictions) preventing - dividing existing property into 2 titles QMDC is concerned bysizes the and references recommends to that minimum the land legislation or should part be of reflective land of wider Regional Council Moreton Bay Regional Council Moreton Bay Local Government Association of Queensland Ltd. Qld MurrayDarling - Committee Inc. RobertLynette and Petersen Submitter 291 Sub 27 291 Sub 27 290 Sub 50 290 Sub 43 290 Sub 3 Cl.
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1 Cl. Submitter Section/Initiative/comment DERM comments 6 Comment/key point 291 Sub 33 Insertion of new Schedule 13A - On 5 August 2011, the Government released a draft State Planning Policy for public consultation. Definitions in Ipswich City Excluded matters in this schedule should be consistent with Annex 1 of the SPP, wherever possible, will be consistent with definitions in the Bill. Where possible, existing definitions Council the draft SPP. under the SPA, SP Regulation and Queensland Planning Provisions have been used for clauses 290 and 291 of ‘Dwelling house’ as identified as exempt development in the draft SPP the Bill. Regarding definitions for excluded matters under clause 291, “a domestic housing activity” (excluded should be considered an ‘excluded matter’ under the Bill. item 2 ) is defined under the Sustainable Planning Regulation 2009, an urban area (excluded item 4) is defined Excluded matters 2, 4 and 7 should be defined in the dictionary of the Bill under the Sustainable Planning Regulation 2009, and a Key Resource Area (excluded item 7) is defined under to provide clarity. State Planning Policy 2/07: Protection of Extractive Resources. 291 Sub 33 Insertion of new Schedule 13A - The activities listed in Schedule 13A of the Bill that are defined under the Standard Planning Scheme Provisions Ipswich City Annex 1 of the draft SPP and Schedule 13A of the Bill needs to identify have descriptive definitions that can be used to interpret whether or not a proposed activity meets the definition Council an interim measure for which land uses are exempt if a planning scheme and therefore whether or not it is an excluded matter. is not QPP compliant. 291 Sub 33 Insertion of new Schedule 13A - Temporary development is defined in the bill in clause 14 (4). The draft SPP also contained a list of temporary Ipswich City Remove ‘outdoor sport and recreation’, ‘parks’ and ‘constructing developments in Annex 2. The draft SPP was released for public consultation and the Government is currently Council underground pipes’ from temporary development in Annex 2 of the draft considering the submissions received including comments on Annex 2. SPP and move to Annex 1. Adverse impacts will result if these land uses are required to cease operation after 50 years. These land uses should also be listed as ‘excluded matters’ under Schedule 13A of the Bill. 291 Sub 42 Insertion of new sch 13A - Clause 291 provides exemptions from the Sustainable Planning Regulation 2009 triggers. These parts of Queensland For the sake of clarity, QRC would prefer that these exemptions are chapter 10 of the Bill amend the Sustainable Planning Regulation 2009. Resources noted under S6 Council 291 Sub 43 Urban expansion has historically been the main cause of reduction in Urban expansion is addressed through local government planning schemes and regional planning under the Qld Murray - good quality agricultural land in the QMDB region. This is unlikely to Sustainable Planning Act 2009. Clause 80 of the Bill requires a State planning policy (SPP) under the Planning Darling change given the increasing population of both Southeast and Southern Act about SCL. A draft SPP was released for public consultation on 5 August 2010. The draft SPP stated that it Committee Queensland. QMDC are very concerned that the following listed excluded would not apply to areas already designated for urban development under existing regional plans and local Inc. matters clause 291(4),(5),(6)& (7) will undermine the intent of the SCL Act government planning schemes. However, SCL will need to be considered when those existing plans and and should therefore be removed from this section. schemes are remade or amended, or when new plans or schemes are developed. The exemptions for urban areas in clause 291 of the Bill are consistent with the policy outlined in the draft SPP.
291 Sub 44 Insertion of new sch 13A - The cost for assessment of development applications were estimated in a Regulatory Assessment Statement Agforce There has been some consternation during the development process of released on 31 May 2011 for public consultation. However, exemptions under clause 291 of the Bill, will allow this bill regarding on farm diversification of development pertaining to applications for diversified uses listed in clause 291 (including a building, structure or activity supporting removal of strategic cropping lands. Agforce is pleased to see this further cropping on SCL or potential SCL) to be made without a SCL assessment. expanded upon in S291, listing many farm diversification developments that can be excluded from these criteria. However, without having seen the regulations to these sections, it is difficult to understand what prcesses these will be assessed under, and there appears to be the posdsibility from the draft regulatory statements pertaining to this Bill that very large costs for development applications may be required for the landholder to undertake these activities on their own property. Agforce requests the committee to look in to this issue and provide resolution to the agricultural sector that this will not be the case. (Sub 44, p.2) 291 Sub 50 The Association fully supports the identified “excluded matters” in Planning for communities is addressed through local government planning schemes and regional planning Local Chapter 10, Part 2, section 291 – Schedule 13A. Nonetheless, the LGAQ under the Sustainable Planning Act 2009. Clause 80 of the Bill requires a State planning policy (SPP) under the 116 Environment, Agriculture, Resources and Energy Committee relating to soil and landMinister resources must and other review matters the decidedthe Act’s by Bill operation the after Minister. provides Clause 30 thatcriteria 269 January provides the 2014 have that purpose but the been of beforeConservation 30 the designed of Agricultural January Bill to Land 2016. is (SPP1/92) Clause achieve continues to to 3 this apply protect of toA land purpose. a technical broader that range assessment is of State involving agriculturalzones—Granite highly land. detailed suitable Belt, Planning checking for Wet Policy of cropping.zones—and tropics, 1/92 128 an Coastal independent sites Development The expert Queensland, review across and were Eastern the undertakenOn Darling to five 14 ensure Downs strategic April the criteria 2011 and cropping are the land Western scientifically proposed robust. criteria Cropping were publicly released, along with the technical assessment report example, urban expansion may benon-SCL land permitted available on for SCL required where urban expansion. it can be demonstrated that there is noThe alternative definition ofquantified footprint and assessed. is The necessary conceptor other is to elements consistent of with the allow other final the development. items in impacts Schedule of 7 which proposed refer to development infrastructure applications to be DERM Comments A technical assessment involvingzones—Granite detailed Belt, checking Wet ofzones—and tropics, 128 an Coastal independent sites expert Queensland, review across were Eastern the undertakenOn Darling to five 14 ensure Downs strategic April the criteria 2011 and cropping are theand land Western scientifically proposed independent robust. Cropping criteria expert were review. publicly Furtheris released, detail along outlined about with the the in consultationEnvironment, technical undertaken the assessment Agriculture, in report developing Consultation Resource theMinister criteria and Briefing may Energy on establish a Committee.will the Science be Clause Strategic and to 227 give Technical Cropping the of Implementation Minister Land Committee. the independent The scientific Bill Bill and Committee’s 2011 provides technical functions advice that prepared about the the for administration of the the Act DERM comments Planning Act about SCL. TheseSPP matters was are released not for dealt public with consultationThe in on the draft 5 Bill August SPP as 2010. they recogniseddevelopment will that be dealt some on with urban in thisdemonstrated the centres exceptional SPP. are circumstances land surrounded A in draft the would by making SCL, of prevent regional and and strict future local requirements government planning growth. to schemes. avoid For Therefore, the draft SPP proposed to allow for soils in theBurnett South from Burnett the area. Coastal Queensland Recommend zone partitioning and off lift the the slope South threshold to Zonal criteria – Coastal Queensland zone - Slope threshold should be increased from 5% to 8% to capture the red of SPR), as anindicated by area the rather definition; thanmay and a be the used "...proportion term for ofapplication includes stage storage.". the "an and relevant would area This be lot" usedalso very aspect needs as or difficult to is to be that police. clarified unlikely to The to exclude word temporary "storage" be goods known storage. at the Section/ Comment Key Points Zonal criteria - Identification of SCL using criteria too basic. Section/Initiative/comment Comment/key point has received concerned commentsaffected from by its the local strategicnumber government cropping members land of policy.surrounded In communities by particular, potential there thatfear strategic are cropping that a have land development inintent been and/or the of expansion trigger the identified will mapsuggested policy be and as that and impeded. to the completely communities, Despite maintain need the economic development protect viability strategic associatedresource in industries cropping will with some be land, necessary. rural both (Sub itAmendment 50, or of the is p.3) Schedule remote 26 agricultural (dictionary) - The and definition ofproblems:- the the term term is "footprint" expressed in in section 290, section (changes 292 to Schedule has 7 the following Kingaroy Concerned Citizens Charles Nason Submitter Moreton Bay Regional Council Association of Queensland Ltd. Submitter Government 1 Sub 5 1 Sub 1 Sch. SCHEDULES 292 Sub 27 Cl.
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8 Sch. Submitter Section/ Comment DERM Comments Key Points Group 8%. DERM has said that above 5% in South Burnett are not ‘best of the and independent expert review. DERM met directly with Kingaroy Concerned Citizens Group on 14 June to best’ – this is disputed. DERM not responded to KCCG proposal. outline the SCL policy and to discuss the group’s concerns. DERM then undertook a supplementary technical assessment of the South Burnett region in 20-21 June 2011, which involved an on-ground examination of cropping land across the region by soils and agronomy technical experts. On 21 June 2011, immediately following the assessment, these technical experts met with Kingaroy Concerned Citizen’s Group representatives to outline their findings. On 27 September 2011, the department wrote to the Kingaroy Concerned Citizen’s Group advising that the results of the assessment confirm that the current 5% slope threshold for the Coastal Queensland zone, which includes the South Burnett region, was appropriate to identifying Queensland’s best cropping land. 1 Sub 9 Zonal criteria – Wet Tropics zone - A technical assessment involving detailed checking of 128 sites across the five strategic cropping land Cassowary Slope and drainage criteria exclude a large amount of cropping land in zones—Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping Coast the area – substantial areas are located in areas with poor drainage and zones—and an independent expert review were undertaken to ensure the criteria are scientifically robust. Regional located on slopes greater than 5% (eg sugar cane and bananas). On 14 April 2011 the proposed criteria were publicly released, along with the technical assessment report Council and independent expert review. Further detail about the consultation undertaken in developing the criteria is outlined in the Consultation Briefing on the Strategic Cropping Land Bill 2011 prepared for the Environment, Agriculture, Resource and Energy Committee. 1 Sub 10 Zonal criteria – Coastal Queensland zone - A technical assessment involving detailed checking of 128 sites across the five strategic cropping land Rebecca Slope threshold should be increased from 5% to 8% to capture Kingaroy zones—Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping McNicholl – this would reflect the sustainable farming practices of Kingaroy farmers zones—and an independent expert review were undertaken to ensure the criteria are scientifically robust. who can produce crops at higher slope threshold with similar or higher On 14 April 2011 the proposed criteria were publicly released, along with the technical assessment report yields.Expand SCL assessment process to take into account recently and independent expert review. A supplementary technical assessment of the South Burnett region was recorded productivity of land and sustainable farming methods. undertaken by DERM in June 2011 which involved an on-ground examination of cropping land across the region by soils and agronomy technical experts. The results confirm that the current 5% slope threshold for the Coastal Queensland zone, which includes the South Burnett region, is appropriate to identifying the best cropping land in that region. The Bill does not include specific consideration of productivity or farming practices when determining whether land is SCL or not. These issues are not directly related to the quality of the soil resource and if considered, may lead to perverse outcomes (e.g. changing farming practices to alter the land’s SCL status). 1 Sub 16 Zonal criteria – Eastern Darling Downs - A technical assessment involving detailed checking of 128 sites across the five strategic cropping land Friends of Slope of 5% too low- should be increased to 8%. High yielding crops are zones—Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping Felton consistently grown on slope greater than 5% due to modern farming zones—and an independent expert review were undertaken to ensure the criteria are scientifically robust. techniques such as zero tillage and controlled farming preventing erosion. On 14 April 2011 the proposed criteria were publicly released, along with the technical assessment report Slope preferred by vegetable growers to eliminate water logging. Land and independent expert review. The slope threshold of the Western Cropping zone was specifically with slope greater than 5% often has shallower soil and will be addressed considered in the Technical Assessment (refer to pages 21-22 of the report) and found to be appropriate. through soil depth criterion. However, it was identified that the 3% slope threshold was excluding areas of highly suitable cropping land in the eastern Darling Downs. To address this, a new Eastern Darling Downs zone was separated from the Western Cropping zone with a 5% slope threshold. Further detail about the consultation undertaken in developing the criteria is outlined in the Consultation Briefing on the Strategic Cropping Land Bill 2011 prepared for the Environment, Agriculture, Resource and Energy Committee. The Bill does not include specific consideration of productivity or farming practices when determining whether land is SCL or not. 118 Environment, Agriculture, Resources and Energy Committee were publicly released, along with the technical assessment report proposed criteria storage was endorsed bystorage, Dr in his Roger independent Shaw, review of whose the research criteria for work identifying included SCL. significant work on soil water zones—Granite Belt, Wetzones—and tropics, an Coastal independent expert Queensland, review were Eastern undertakenOn Darling to 14 ensure Downs April the criteria 2011 and are the and Western scientifically independent robust. Cropping expert review.undertaken A by supplementary DERM technical in June assessmentregion 2011 by of soils which the and involved South agronomy anthe technical Burnett on-ground experts. Coastal region examination The Queensland of was results cropping zone, confirmbest that land which cropping the across land includes current the in 5% the that slope region. South threshold for Burnett region,Clause is 3 appropriate of to thecropping; identifying Bill manage the the provides impacts thatland of the for development purposes future on generations. of thatthat This land; the the is and Bill consistent preserve best are with the croppingmanaged to the productive for land—strategic protect Government’s capacity the cropping policy of land longer land— announced that thatfive term. in is strategic A is cropping February technical a highly land 2010 assessment finite zones—Granite suitableand involving Belt, resource for Wet Western detailed tropics, that Cropping checking Coastal must zones—and of Queensland,are an 128 be Eastern sites independent Darling scientifically conserved Downs across expert robust. and the reviewtechnical On were undertaken 14 assessment to April ensure reportundertaken 2011 the in developing criteria and the the proposed criteria independentBill is criteria outlined were 2011 in expert prepared publicly the for Consultation review. released,Bill Briefing the on Environment, along provides Further the Agriculture, Strategic with that Resource Cropping detailCommittee’s the Land the and functions Energy Minister about Committee. will may Clause the be establishadministration 227 of to of consultation a the give the Act Science relating the to and Minister soilClause Technical and independent 269 land Implementation provides scientific resources that and Committee. and the otherJanuary The technical Minister matters 2016. decided must advice by review about the the Minister. Act’s the operation after 30Schedule January 1, 2014 clause19, but of beforesoil the 30 texture Bill look-up sets table; or out a two combinationThe methods of requirements for laboratory are measurement determining further and set the direct outthe Soil field in Guidelines measurement. Water this document Storage section (particularly of criterion section the 4.8 – Bill and and Appendix the 2). details This of approach the to methods determining are soil provided water in DERM Comments These issues are notperverse outcomes directly (e.g. related changing farming to practices to the alter quality theA land’s of technical SCL the status). assessment soil involving resource detailed and checking if of considered, 128 may sites lead across to the five strategic cropping land Criteria - the confusion that is likelycritical to errors exist of when fact makingQueensland’s strategic the in cropping assessments Table land due – 3 to onProposed criteria water for holding identifying strategic capacity cropping in land. Protecting Purpose of the Act – Zonal Criteria dismayed at the creation ofcropping yet land; new criteria to identify the mostthe productive onus being placed on theundertake landholder a particular (or the development) to company wishing useidentify to the SCL proposed when criteria maps to have alreadyagricultural land been produced, (GQAL in for many good instances quality indicative but mapping) not under all the mirrors Queensland the Government’sPolicy SCL State 1/92, Planning Development and Conservation of Agricultural Land; Section/ Comment Key Points Zonal criteria – Coastal Queensland zone - Slope threshold should be increasedBurnett from area. 5% to 8% to capture the South ASSSI ASSSI FriendsFelton of Submitter 1 Sub 26 1 Sub 26 1 Sub 16 Sch.
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0 Sch. Submitter Section/ Comment DERM Comments Key Points 1 Sub 39 SCL criteria - A technical assessment involving detailed checking of 128 sites across the five strategic cropping land Canegrowers The SCL criteria are still debatable. They do not identify some highly zones—Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping productive agricultural soils in Queensland nor do they cater for the zones—and an independent expert review were undertaken to ensure the criteria are scientifically robust. diversity of the production systems that remain viable on a variety of soil On 14 April 2011 the proposed criteria were publicly released, along with the technical assessment report types across the state. and independent expert review. Further detail about the consultation undertaken in developing the criteria is outlined in the Consultation Briefing on the Strategic Cropping Land Bill 2011 prepared for the Environment, Agriculture, Resource and Energy Committee. Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation Committee. The Committee’s functions will be to give the Minister independent scientific and technical advice about the administration of the Act relating to soil and land resources and other matters decided by the Minister. Clause 269 provides that the Minister must review the Act’s operation after 30 January 2014 but before 30 January 2016. Clause 3 of the Bill provides that the purpose of the Bill is to protect land that is highly suitable for cropping. The criteria have been designed to achieve this purpose. State Planning Policy 1/92 Development and Conservation of Agricultural Land (SPP1/92) continues to apply to a broader range of agricultural land. 1 Sub 40 Legislation is too narrow in its focus – criteria seems to be setup to The criteria are focused on the soil resource and are not assessed at property or paddock level. However, Lindsay & exclude paddocks rather than identify paddocks as SLC. Water resources in the management area, land must meet the SCL criteria and thresholds for the relevant zone (schedule 1 Avriel Tyson not considered at all. of the Bill) and have a history of cropping. Cropping history is assessed at property level. Water resources Other legislation is in place to regulate the impacts of development on water supplies including the Water Act 2000 which addresses access to groundwater supplies and the Environmental Protection Act 1994 which addresses environmental harm caused to groundwater supplies. Climate, including rainfall was considered in setting the boundaries of the five criteria zones to reflect the different cropping systems and climatic variations across the State. However, the Bill does not include irrigation water availability due to its dependence on issues not related to the quality of the soil resource and the potential for perverse outcomes (for example, the sale of water rights affecting which would affect the land’s status as strategic cropping land). A technical assessment involving detailed checking of the criteria for 128 sites across the five strategic cropping land zones—Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping zones—and an independent expert review were undertaken to ensure the criteria are scientifically robust. The issue of irrigation was considered as part of the technical assessment and concluded (refer to page 12 of the assessment report)- “The capacity for a parcel of land to be irrigated is dependent on many issues, including access to reliable water sources, the locality of the land, the configuration of the land and capacity to alter the land surface (e.g. levelling). This is further complicated by water being a tradeable commodity. Further, not all cropping requires irrigation, which depends on its locality (for example, higher rainfall areas in the Wet Tropics), prevailing weather conditions (i.e. wet seasons) and the type of crop being grown (e.g. dryland grains cropping). For these reasons, the availability (or otherwise) of irrigation water for cropping is not considered within the SCL framework or criteria.” 1 Sub 42 Zonal criteria for original zones - A technical assessment involving detailed checking of 128 sites across the five strategic cropping land Queensland Given the open questions over these criteria* and the inevitable need to zones—Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping Resources amend these criteria as implementation proceeds, QRC suggests that zones—and an independent expert review were undertaken to ensure the criteria are scientifically robust. Council these criteria thresholds should be in regulation not legislation. On 14 April 2011 the proposed criteria were publicly released, along with the technical assessment report and independent expert review. Further detail about the consultation undertaken in developing the criteria 120 Environment, Agriculture, Resources and Energy Committee were publicly released, along with the technical assessment report were publicly released, along with the technical assessment report proposed criteria proposed criteria SCL criteria such as salinitylevelling”. or The wetness criteria following apply rain to due the toconservation. soil ponded resource; water, other and Acts typically are will specifically re-formCriterion focussed after 6 on biodiversity The eight criteria for each croppingdefine zone SCL. set An out area in must Schedule meetunable 1, to all Part define of 2, strategic the Divisions eight cropping criteria land. 1 to toCriterion be 5 7 defined operate together as to SCL. Each criterion on its own is provides that the Minister may establishCommittee’s functions a Science will and be Technical to Implementation giveadministration Committee. of the The Minister the Act independent scientific relating toThese and soil technical matters can advice and land include about the resources advice and onmust other review the matters the criteria and Act’s decided by the operation the thresholds. after Minister. Clause 30 January 269 provides 2014A that but technical the before assessment Minister 30 involving January detailed 2016. checkingzones—Granite Belt, of 128 Wet sites tropics, across Coastal the Queensland,zones—and five Eastern an strategic Darling independent cropping Downs expert land and review Western were Cropping undertakenOn to 14 ensure April the 2011 criteria the areand scientifically independent robust. expert review. Further detailis about outlined the in consultation the undertaken Consultation in BriefingEnvironment, developing on Agriculture, the the Resource Strategic criteria and Energy Cropping Land Committee.satisfies Bill Including the the 2011 requirements prepared of criteria for and the thresholds the LegislativeBill in Standards and Act the will Bill 1992. determine how The thethat criteria Act the are will Minister a may effect fundamental establish individuals’ part a rightsfunctions of and Science will the liberties. and be Technical Clause to 227 give Implementation Committee. of thethe The the Act Minister Bill Committee’s independent relating scientific to provides soil and technical andinclude advice land advice resources about on the and the other criteria administration of matters andAct’s decided the operation by after thresholds. the Clause 30 Minister. 269 January These provides 2014 matters that but can before the 30 MinisterThe January must thresholds 2016. review for the chloride content, electricalDivisions conductivity 1-5 for and each soil of depth the are set relevantA out cropping technical in zones. assessment Schedule involving 1, detailed Part checkingzones—Granite 2, Belt, of 128 Wet sites tropics, across Coastal the Queensland,zones—and Eastern five an Darling strategic independent cropping Downs expert land and review Western were Cropping undertakenOn to 14 ensure April the 2011 criteria the areand scientifically independent robust. expert review. Gilgai microrelief(refer to is pages specifically 23-24 considered in of report) the300mm technical and to assessment recommended 500mm. that The the report gilgai concluded depth that threshold gilgai be “greater increased than from 500 mm would generally fail on other DERM Comments is outlined in the Consultation BriefingEnvironment, on Agriculture, the Resource Strategic and Energy Cropping Land Committee.satisfies Bill Including the the 2011 requirements prepared of criteria for and the thresholds the LegislativeBill in Standards and Act the will Bill 1992. determine how The the criteria Act are will a effect fundamental individuals’ part rights of and the liberties. Clause 227 of the Bill Chloride content definitionElectrical does conductivity not definition appear doesSoil not to depth appear definition have to re a continuous have gravel a layer...need depth to areas play an integral role inpoint supporting of view biodiversity. it From would a be biodiversity detrimental to remove these gilgai depressions. threshold...how can this be applied (See Schedule 1 (11))? threshold...how can this be applied (See Schedule 1 (12))? gravel layer and depth of the gravelSchedule layer 1 (See Part Schedule 2 1 Criteria (17))? DivisionGilgai 1 density Western extent Cropping is Zone too - narrow.and Criterion black Many 3 and of the will cracking meet many vertosolsthe of are past flat the these criteria areas outlined have in beencrop this leveled production. document. with QMDC In lasers is to of allow theto successful view be implemented, that depending these on practices individual couldaddition, continue some property circumstances. gilgai In depressions cannot be easily leveled. Some of the an example of where the hastedifficulties to when enact the criteria legislation need is to likely be to refined create in the future. (Sub 42, p.3) QMDC supports the publication definitions andthey defined provide publications some as rigour in the assessment process. Section/ Comment Key Points * See QRC’s independent review of theQRC proposed recommends criteria. removal of the detailfrom the of legislation the specific and address zone in thresholds regulation instead. (Sub 42, Att p.25) Enshrining the proposed scientific criteria (schedule1)strategic used cropping to lands, identify before they have been properly field-tested, is Qld MurrayDarling - Committee Inc. Queensland Resources Council Submitter 1 Sub 43 1 Sub 42 Sch.
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2 Sch. Submitter Section/ Comment DERM Comments Key Points If these attributes are included as criteria for SCL, outstanding questions Chloride is used as the measure of salinity in the Western Cropping and Eastern Darling Downs zones due are: to the presence of gypsum found in soils in these zones which elevate electrical conductivity (EC) Is land considered SCL criteria once the laser leveling takes place? readings. The technical assessment report released in April 2011 specifically addresses this issue (refer to page 31)- “One of the problems in using EC1:5 as an indicator of soil salinity is that all soluble salts, Does this criteria restrict properties from improvements such as laser including gypsum, are detected in the soil solution. Whilst existing predominantly in soil as crystals, leveling? gypsum readily dissolves when soil is diluted with water in the laboratory resulting in inflated EC1:5 Criterion 6: An assessment process viewing this criterion in isolation does measurements. For this reason, it has been found that chloride concentration is a preferable indicator of not account for soil type, related soil chemistry, soil porosity and rainfall salinity in areas where gypsum may be present (i.e. in the Western Cropping zone and new Eastern reliability. Darling Downs zone). In addition, recent research (Dang et al., 2008) has shown that chloride Criterion 7: QMDC is concerned that the concentration of chloride is the concentration is a better indicator of subsoil constraints to the growth of grain crops which predominate in only salt being measured in the Western Cropping area. western areas.” Regarding comments about criterion 7 in the Granite Belt zone, page 9 of the independent expert review report noted “The threshold level of EC1:5 chosen represents the boundary between Criterion 8: QMDC‟s concern with the threshold proposed is that in moderately salt tolerant plants and salt tolerant plants for high clay content soils (Table 27 of Salcon practice there are a lot of production systems that are grown on soils with 1997)”. a PAWC of 75mm or better. Criterion 8 Schedule 1 Part 2 Criteria Division 5 Granite Belt Zone – Pages 33-37 of the technical assessment report specifically discuss the soil water storage criterion and its Criterion 7: the EC criteria for the Granite Belt may be misleading measurement. because there are crops being grown in that area that are EC tolerant. QMDC would also like to see some discussion on secondary salinity and Irrigation whether this needs to be considered. The issue of irrigation was considered as part of the technical assessment and concluded (refer to page 12 Irrigation Capability: Areas within the Western Zone and granite belt zone of the technical assessment report)- produce a large proportion of the nation’s horticultural crops on sandy “The capacity for a parcel of land to be irrigated is dependent on many issues, including access to reliable loam soils which is largely excluded from SCL maps. Further discussion water sources, the locality of the land, the configuration of the land and capacity to alter the land surface is required to articulate clearly whether the intent of the policy is to solely (e.g. leveling). This is further complicated by water being a tradeable commodity. Further, not all cropping protect naturally productive areas or whether it also includes other areas requires irrigation, which depends on its locality (for example, higher rainfall areas in the Wet Tropics), which become productive with the addition of water. It could be well prevailing weather conditions (i.e. wet seasons) and the type of crop being grown (e.g. dryland grains argued irrigated property could also be strategic cropping lands. cropping). For these reasons, the availability (or otherwise) of irrigation water for cropping is not Process and Changes to Criteria and Thresholds: QMDC recommends considered within the SCL framework or criteria.” that the development and application of agreed criteria and associated Process and changes to criteria and thresholds thresholds should be underpinned by a number of guiding principles, Clause 227 of the Bill provides that the Minister may establish a Science and Technical Implementation similar to the SPP1/92. These principles would assist a consistent and Committee. The Committee’s functions will be to give the Minister independent scientific and technical transparent approach within the policy framework. advice about the administration of the Act relating to soil and land resources and other matters decided by the Minister. 1 Sub 48 FFQ recommends the committee support …the criteria defining SCL No comment required. FutureFood Queensland
122 Environment, Agriculture, Resources and Energy Committee Statutory Instruments Act and Acts Interpretation Act 1954 were publicly released, along with the technical assessment report —The August 2010 framework was presented at nine community forums on coal —The Government hosted community information sessions on the discussion proposed criteria —The Government released Protecting Queensland's strategic cropping land: A policy —The Government announced there would be a Science and Technical Implementation —The Government released a discussion paper on conserving and managing food- —A Stakeholder Advisory Committee was formed (including representatives from the —The Government released the proposed criteria for identifying SCL, a technical —A draft State Planning Policy was released for public consultation. —The Government announced implementation of the SCL policy through Protection Areas , which are administered by the Office of Queensland Parliamentary Counsel. assessment report and independent expert review report31 of May the proposed 2011 criteria. and a Management Area, releasedStatement the for transitional public arrangements, consultation. andmeasures. released In a addition, Regulatory the Assessment Government5 announced August the 2011 requirement for mitigation 24 August 2011 Committee. On 14 April 2011 the and independent expert review. Theconsidered slope in threshold of the Technical the Western Assessment (refer CroppingHowever, to it zone pages was was 21-22 identified specifically of that the thein report) 3% the and slope eastern threshold found Darling was to Downs. be excludingthe appropriate. To areas Western address of Cropping highly zone this, suitable a with new cropping a land Eastern 5% Darling slope Downs threshold. zone was separated from Drafting conventions are established1992 by the The consultation undertaken inBriefing developing on the the Strategic SCL CroppingEnergy policy Land Committee Bill and and 2011 submitted legislation prepared to is for the the Committee outlinedThis Environment, by in consultation Agriculture, DERM has Resource on the included and 4 Consultation the November following: 2011. February 2010 producing land for public consultation. February 2010 agriculture, resource and urban developmentgroups) sectors, and local has government meet and regularly natural since resource itsFebruary–March management formation. 2010 paper. 23 August 2010 framework (August 2010 framework) for public consultation. August–September 2011 seam gas in south-west Queensland. 14 April 2011 DERM Comments A technical assessment involving detailed checkingzones—Granite Belt, of 128 Wet sites tropics, across Coastal the Queensland,zones—and Eastern five an Darling strategic independent cropping Downs expert land and review Western were Cropping undertaken to ensure the criteria are scientifically robust. The dictionary in Scheduledoes contain 2 a circular does reference not to S9. containRecommendation: Provide a a clear definition and of unambiguous definition SCL, of but SCL. Commencement - This is aconsidered very recommendations short to the timelineand important Parliament. for piece of the This legislation,for with both Bill Committee potentially resource is development to significant and a ramifications farming make complex inRecommendation: Queensland. proper Commencement on and 30 Juneconsidered 2013 to review allow proper oflegislation and to be the reviewed and submission;and enhanced, formulation ensuring of it the meaningful is recommendations robust science to and the correct; Parliament underpinning the Section/ Comment Key Points Schedule 1, Part 2 defines thevarious criteria zones. Criteria that validates 1 SCL relates to withinapplies the the across maximum the permissible different SCL slope zones. that Western A Cropping 3% Zone max where slope our relates operationa to is 5% the located. max. applies. In all My view otherand is zones “Landcare” practices that state are of widespread the acrossZone the art on sustainable Western soils farming Cropping that are generallyzones less where the erosion prone 5% than max soils ruleDERM’s applies. in explanation I the why other submit this that anomaly your existstheir committee recommendations and seek I if submit DERM’s that cannot justify 5%Western slope Cropping criteria Zone. be (Sub 49, applied in p.1) the Xstrata Coal Xstrata Coal Lee McNicholl Submitter 2 Sub 21 2 Sub 21 1 Sub 49 Sch.
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4 Sch. Submitter Section/ Comment DERM Comments Key Points 8 September 2011—Guidelines for applying the proposed criteria at a property level were released, as well as an online mapping tool. 27 September 2011—The Government announced that legislation would be introduced into Parliament in late October 2011, and released further information on mitigation arrangements. The Bill is consistent with previously announced government policy. 2 Sub 27 Dictionary - Drafting conventions are established by the Acts Interpretation Act 1954 and Statutory Instruments Act Moreton Bay The definition of the term "decision-maker" in Schedule 2 needs to be 1992, which are administered by the Office of Queensland Parliamentary Counsel. Regional amended to clarify that it only applies to applications made under this Act Council (see item 32 above for more detail). 2 Sub 27 Dictionary - Section 32A of the Acts Interpretation Act 1954 provides that words are to be read in the context provided Moreton Bay (42) The definition of "highly suitable for cropping" in Schedule 2 needs to by the Act. Therefore where a word is not defined the ordinary meaning of the word must be relied upon in Regional be more determinative. the context of the legislative provision. The phrase “highly suitable for cropping” therefore takes on the Council ordinary meaning of the word as understood when applied to the purposes of the Act to protect strategic cropping land. Providing an additional definition would limit the application of the provision, and the powers of the Minister and chief executive, unnecessarily. 2 Sub 27 Dictionary - Drafting errors and other minor error may be amended prior to the Bill being passed by the Parliament. Moreton Bay (43) The section number has been omitted from the definition of the term Regional "minimum size" in Schedule 2. Council 2 Sub 27 Dictionary - Drafting conventions are established by the Acts Interpretation Act 1954 and Statutory Instruments Act Moreton Bay (44) The definition of the term "official" in Schedule 2 is cyclical in its 1992, which are administered by the Office of Queensland Parliamentary Counsel. Regional operation. Its meaning is essential to establishing the scope of liability Council under section 268. However, item (f) of the definition is reliant upon firstly establishing who is liable in the performance of functions under the Act. 2 Sub 27 Dictionary - Section 14B of the Acts Interpretation Act 1954 applies to require the clause to be read to achieve the Moreton Bay (45) The words "that the land is restored to" need to be removed from the purposes of the Act. Therefore the provision should be read to the effect the restoration should be Regional definition of the term "predevelopment condition" in Schedule 2. The undertaken to a level that returns the land to the condition of that land prior to the development Council current wording gives the impression that restoration is required before commencing. the development is started rather than when it ceases. 2 Sub 27 Dictionary - Drafting conventions are established by the Acts Interpretation Act 1954 and Statutory Instruments Act Moreton Bay (46) The definition of the term "relevant website" in Schedule 2 refers to 1992, which are administered by the Office of Queensland Parliamentary Counsel. The department’s Regional "the department's website" but gives no indication as to which department website refers to the department responsible for the administration of the Act at that point in time. Council is involved in this context. Department names may change and listing the relevant departments would require amendment to all of the acts as the departments change. The Queensland Parliamentary website may be relied upon to determine which department, from time to time, is responsible for administering the Act. 2 Sub 37 The criteria remain under debate. QFF notes the complexities that have A technical assessment involving detailed checking of 128 sites across the five strategic cropping land Queensland been involved in developing the criteria for SCL identified under Schedule zones—Granite Belt, Wet tropics, Coastal Queensland, Eastern Darling Downs and Western Cropping 124 Environment, Agriculture, Resources and Energy Committee states Acts interpretation Act 1954 of the Bill adds the additional context to Clause 46 were publicly released, along with the technical assessment report proposed criteria The August 2010 policywould framework apply released to by the all Government new provided that and the undecided new resources SCL legislation development applications. It also provided that Environment, Agriculture, ResourceMinister and may Energy establish a Committee.will Science be Clause and to 227 give Technicalrelating the of Implementation to Minister Committee. soil the independent and The scientific Bill landMinister and Committee’s resources provides must technical and functions other review advice that matters the about decided the the the Act’s by administration Bill operation the of after Minister. provides the Clause 30 thatcriteria 269 Act January provides the 2014 have that purpose but the been of beforeConservation 30 the designed of Agricultural January Bill to Land 2016. is (SPP1/92) Clause achieve continues to to 3 this apply protect of toClause land purpose. a 2 broader that provides range for is of commencement State agriculturalor highly on land. 30 the suitable Planning January day 2012. for that Policy is cropping. the 1/92 later of Development The the and following days – the date of assent The Bill defines Contiguous inthat the a Schedule defined 2 Dictionary. termprovision Part requires should 8 the be of word the to readthe be consistently interpreted definition otherwise. throughout of theinstance, contiguous Act, where when the unless applied boundaries of the to individuala context road lots, determining which or or the make a drafting up watercourse extent the(2), of between the property, of them a additional do - a not context the does abut lots property not because are in apply thereIn still is and 46 considered relation contiguous to is to (1) be to using (b) contiguous.In be contiguousterm . terms defined of in by is In clause the clause 61 Schedule this also 281 2 interpretedcadastrally for dictionary based. the as When transitional per mapping arrangements tenure theand for areas, Innovation expansion definition do the projects, provided not Department the indicatecommon of in the Employment, for the location Economic of tenures Development Schedulelicence roads 2 to or and abut. exploration watercourses Dictionary. permit in The will contiguous be relation Tenures nature readily to determined are tenure of byDERM areas the not and will a spatial it data recommend mining held is by thatincluded lease the as amendment government. ‘tenure’. and be any made to mineral the development Bill to clarify that all resource authorities are DERM Comments zones—and an independent expert review were undertakenOn to 14 ensure April the criteria 2011 are the and scientifically independent robust. expert review. Furtheris detail outlined about the in consultation undertaken the in developing Consultation the criteria Briefing on the Strategic Cropping Land Bill 2011 prepared for the The Bill creates uncertainty for the resources sector because the criteria Dictionary - The definition of tenureresource Act”. seems This to definition relyfor is on a very important “the resource for holdingessential project a of during that whole land host the the under ofproduction SCL definition tenures rights a process which reflects are andinclude possible. the as QRC a full such suggests specific that range itlegislation. list the is of (Sub definition of 42, very exploration Att all p.25) and theApplications different and amendments tenure - types under resource Commencement - Does not leave much timeground for breaking review Bill.(Sub of 42, such Atton a p.1) July complex, QRC 2012 contentious recommends and commencement Dictionary - The definition [of contiguous]can be does contiguous not – include forroad example the in sense S61(2)(b) does – in whereby not whichsuggests a watercourse that a break or for lot the consistencypurposes that of contiguity the transition mechanisms. same for (Sub definition 42, applying Att be p.25) applied zonal for criteria. the QRC Section/ Comment Key Points 2 of the Act.monitor QFF the supports application theoutcomes of proposal are to the achieved have and criteria further ato to the technical review Federation ensure committee the supports the policy theQFF proposal intended framework notes at that scientific the thesome criteria end highly as of productive they 2years are agriculturalcater of stated soils for implementation. do or the not land diversity invariety in of any of Qld the soil way types and production identify across nor systems the state. do that they remain viable on a Sub 21 Xstrata Queensland Resources Council Resources Council Queensland Resources Council Queensland Farmers’ Federation Submitter 22 (1)(b) 2 Sub 42 2 Sub 42 2 Sub 42 Sch.
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6 Sch. Submitter Section/ Comment DERM Comments Key Points and trigger maps are flawed and the transitional arrangements are short amendments to resources legislation would- “require assessment of the impact on SCL and will condition lived due to amendments s22 (1) (b) . - requires amendment prior to tenure accordingly. Further conditions for restoration and other environmental matters will continue to be assent and more time for review addressed under the Environmental Protection Act 1994”. Clause 22 (1)(b) of the Bill effectively provides that the Bill applies to applications for amendment, renewal or re-grant of a resource authority, environmental authority or development approval. This is consistent with the Government’s policy announced in August 2010. However, DERM has recommended amendments to the Explanatory Notes to clarify that the assessment will only relate to the matters applied for in the application. Assessment would not be required where no new or amended Environmental Authority is required under the Environmental Protection Act 1994. For example, if a resource development submits an application for an amendment to the environmental authority to increase the level of discharge into a local waterway, the application will be assessed to determine if the proposed amendments will have any impacts on SCL or potential SCL. If there are no impacts, the chief executive can make a decision to that effect under section 90 of the Act. In this instance, the assessment would not consider the entire resource development activities. Ch. 2 Sub 52 Identifying Strategic Cropping Land – Chapter 2 address identifying SCL. Part 1 specifically relates to maps, zones, criteria and areas. Under this and 4 Environmental Exceptional Circumstances part, notification requirements are provided for map amendments. Defenders Public notice requirements fall short of best practice. First and foremost, These include: Office the owners of land to which the SCL relates, as well as adjoining Clause 33 – minor amendments are required to be published by the chief executive on the department’s landowners, must be given written notice of applications that affect their website. rights under the Bill. Second, the way in which applications are publicly Clause 36 – requires the Minister for zonal or protection area amendments to publish a notice about the advertised, need to reflect local conditions. We were instructed by a client proposed amendment circulating generally in the area to which the amendment relates. from the Mackay region that circulation in a local newspaper does not guarantee information will come to attention of all interested stakeholders Clause 39 provides that the chief executive must keep maps published on the department’s website and in timely way. Some landowners only get mail once a week. Time frames make the maps available for public inspection. The chief executive must also make available on the for making submissions need to be long enough to allow an interested department’s website any zonal or protection area amendments. person the opportunity to consider the application, engage experts to This approach is consistent with similar provisions in other legislation involving map amendments (e.g. provide advice on any technical matters, and produce an appropriate Vegetation Management Act 1999). submission. Clause 36 provides for a minimum of 21 days for anyone to make a submission to the Minister about the proposed zonal or protection area amendments. The timeframe established in the Bill is consistent with the timeframes established for public notification on IDAS development applications under the Sustainable Planning Act 2009. Chapter 2 Part 2 deals with deciding what is SCL and validation decisions. Clause 54 specifically provides that a validation applicant must give all owners a copy of the validation application. Clause 55 provides that the applicant must also publish a notice circulating in each local government area that includes the land which is subject of the application.
126 Environment, Agriculture, Resources and Energy Committee 127 Appendix C – Witnesses at public hearing – 10 November 2011
Witness Organisation
Mr Brent Finlay, President AgForce Queensland
Mr Dan Galligan, Chief Executive Officer Queensland Farmers’ Federation
Mr Matt Kealley, Senior Manager, Environment Canegrowers
Mr Michael Murray, Queensland Policy Officer Cotton Australia
Mr Drew Wagner, Policy Director AgForce Queensland
Mr Howard Briggs Australian Society of Soil Science Inc.
Dr Louise Cartwright, President Australian Society of Soil Science Inc.
Mr Craig Johnstone, Media Executive Local Government Association of Queensland
Mr Geoff Penton, Chief Executive Officer Queensland Murray-Darling Committee Inc.
Mr Andrew Barger, Director, Industry Policy Queensland Resources Council
Mr Gavin Batcheler, Solicitor HopgoodGanim on behalf of Bandanna Energy Limited
Mr Aaron Johnstone, State Director Cement Concrete & Aggregates Australia
Ms Lizzie Bradford, Secretary Arcturus Downs Ltd and Central Queensland Golden Triangle Community
Mr Ian Whan, President Friends of Felton
Mr Charles Wilson, Co-Chair FutureFood Queensland
128 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Appendices
Appendix D – Briefing officers – Department of Environment and Resource Management
Officer Position
Ms Sarah Bill Principal Policy Officer, Land Planning
Mr Peter Burton General Manager, Land Management and Use
Ms Anita Haenfler Director, Land Planning
Ms Shannon Jimmieson Principal Adviser, Land Management and Use
Mr Chris Robson Assistant Director-General, Land and Indigenous Services
Ms Carly Waide Manager, Land Planning
Environment, Agriculture, Resources and Energy Committee 129 130 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Statement of Reservation
Statement of Reservation
We, the undersigned, support the purposes of the Strategic Cropping Land Bill 2011 (the bill) as they are stated in Clause 3:
(a) protect land that is highly suitable for cropping; and (b) manage the impacts of development on that land; and (c) preserve the productive capacity of that land for future generations.
In respect of Recommendation 1 in this report, we support it to the extent that it recommends the bill proceed through the Queensland Parliament. However, we are compelled to submit this statement of reservation in view of Recommendation 1 also recommending the bill be passed subject only to the clarifications and assurances sought by the committee in respect of several clauses and provisions in the bill. We can not ignore the fact that the committee report seeks only further clarifications and assurances from the Minister in respect of critical issues concerning several key clauses and provisions of this bill. The public submissions taken by the committee have raised a number of fundamental concerns and the Department of Environment and Resource Management (DERM) has been unable to adequately address them. As such, we consider the committee report ought to recommend that the Minister provide clear and unambiguous advice about these substantive issues, rather than simply seeking clarification and assurances about them. Given the significance of this bill (as it is without precedent in other states or at the Commonwealth level7), it is imperative that achieving the maximum level of certainty is a priority consideration. The LNP believes strongly that strategic cropping land (SCL) must be protected and that it presently does not have adequate protection in Queensland. The position of the LNP is that the bill is significantly flawed and our concerns will be outlined further below. However, the LNP considers that the bill needs to be passed by the parliament as soon as possible, to afford SCL at least a degree of protection. The LNP remains committed to implementing its stated policy to protect SCL. However, the LNP believes this bill should be passed as soon as possible to inform the decision making process in respect of new development applications. The LNP believes some of the technical work that will be done, in terms of the analysis of soils as a result of the implementation of this bill, will be useful in implementing its policy.
SHORTENED COMMITTEE PROCESS Standing Order 136 ordinarily provides parliamentary committees with up to 6 months from the referral of a bill to the date that it is required to report to the Legislative Assembly. In this instance, the Committee has been required to report back to the Legislative Assembly by 25 November 2011, only one month from the date of the bill’s introduction to the Legislative Assembly on 25 October 2011. While the matters contained in the bill have been the subject of an extended public consultation process8, it does not appear to have been a particularly effective one. The call for public submissions
7 Strategic Cropping Land Bill 2011, Explanatory Notes, Consistency with legislation of other jurisdictions, Page 9 8 Environment, Agriculture, Resources and Energy Committee, Public Briefing by DERM on the Strategic Cropping Land Bill, Transcript of Proceedings, Pages 2,3,4
Environment, Agriculture, Resources and Energy Committee 131 Statement of Reservation Strategic Cropping Land Bill 2011 to the committee’s inquiry resulted in 56 written submissions, the overwhelming majority of which, while supporting the principle objectives of the bill, expressed serious concerns with its clauses and provisions. It would appear the efforts of the government to undertake public consultation9 have been unsuccessful in resolving the major community and industry concerns about its strategic cropping land policy. The government facilitated public consultation has proven to be an inadequate substitute for a full and proper consideration of the bill by the Environment, Agriculture, Resources and Energy Committee of the parliament.
EXAMINATION OF THE BILL The report accurately identifies the most contentious issues raised by public submissions and in the evidence given to the committee during its public briefing by DERM and the public hearing on the bill. There is a wealth of additional material that supports the LNP’s contention that the bill is significantly flawed. LNP members of the committee encourage other members to consider this material carefully. To canvass in detail in this statement of reservation, even a fraction of the information provided to the committee would result in a report as lengthy as the committee report itself. The observations below seek to underline those matters that have been presented to the committee as representing significant policy, technical and administrative flaws in the bill in order to facilitate members’ consideration of it.
THE IDENTIFICATION OF STRATEGIC CROPPING LAND There were substantial concerns expressed in relation to the process established by the bill to identify SCL, particularly the policy decision by the government to establish both the two SCL protection areas and the SCL management area. It was asserted that there was no justification for differentiating between SCL in the two protection areas (Southern & Central Protection Areas) and in the management area10. A number of submitters expressed dissatisfaction that an arbitrary distinction had been made between the protection afforded to SCL within the two protection areas and SCL in the management area, insisting that SCL was either worth protecting or it was not11. The failure to afford all SCL a consistent level of protection appears to be contrary to the stated purpose of the bill, to protect land highly suitable for cropping. Notwithstanding that the explanatory notes accompanying the bill claim that it provides for a consistent process for assessing and determining whether developments are able to proceed on SCL12, this is clearly inaccurate. There are no technical differences between the quality of the soils on SCL in the two protection areas, compared to the quality of the soils on SCL in the management area. As such, while the bill claims to establish a scientifically based process for identifying SCL in Queensland13, it does no such thing. It proposes to create a two tier system distinguishing SCL in the two protection areas from SCL in the management area based only on its location, not its productive
9 Strategic Cropping Land Bill 2011, Explanatory Notes, Consultation, Pages 8,9 10 Environment, Agriculture, Resources and Energy Committee, Public Hearing on the Strategic Cropping Land Bill, Transcript of Proceedings, Page 3 11 Environment, Agriculture, Resources and Energy Committee, Public Hearing on the Strategic Cropping Land Bill, Transcript of Proceedings, Page 3 12 Strategic Cropping Land Bill 2011, Explanatory Notes, Policy Objectives and the reasons for them, Page 1 13 Strategic Cropping Land Bill 2011, Explanatory Notes, Achievement of policy objectives, Pages 2,3
132 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Statement of Reservation capacity. Nothing in the bill’s explanatory notes or in the information provided by DERM, justifies this distinction. That the bill creates this arbitrary distinction is a legitimate criticism of its provisions. This arbitrary provision has been included without any explanation and must therefore be considered a policy decision of the government. This policy decision appears to undermine the stated purpose of the bill. It is reasonable therefore, to question if the public can have confidence in the balance of the provisions in the bill.
VALIDATING WHETHER LAND IS SCL OR NOT There were considerable concerns expressed in relation to the criteria established in the bill to determine whether or not land is SCL, involving assessment against eight criteria based on the physical characteristics of the soil, whether it meets minimum size requirements and whether it meets a cropping history test. These provisions encouraged wide ranging debate about what makes cropping land “strategic”. While the eight physical soil criteria are considered to be relevant tests to legitimately determine the quality of cropping soils, the thresholds set for each of these criteria have been criticised for excluding highly productive land that has been successfully growing high value crops for extended periods14. Notwithstanding zonal adjustments allowing for regional differences, the eight soil criteria are considered to be flawed. The cropping history test criteria has been criticised for its failure to consider that land worthy of being considered as SCL (meeting the physical soil criteria) could be excluded on the basis that factors other than suitability for cropping may prevent a landholder from farming land. Amongst these include depressed market prices, extended drought conditions, or a fixed term biosecurity declaration over a property. The additional minimum size criterion appears to present a reasonable test against which SCL mapping can be undertaken. A small, isolated area of land that would otherwise be considered as SCL is not realistically a strategic asset. However, the minimum size test (along with the cropping history test) moves the SCL validation process a further step away from a purely technical or scientific assessment of soils.
ASSESSMENT OF THE DEVELOPMENT IMPACTS ON THE LAND There were considerable concerns expressed in relation to the mechanisms for assessing the impact of development on SCL in terms of its reduced productive capacity, the efficacy of measures to avoid and minimise these impacts and determining if the impacts are temporary or permanent. A particular concern is the absence of a clear mechanism calibrating impacts on SCL with mitigation payments15.
The appropriateness of the 50-year time frame for determining if a permanent impact has occurred on SCL following a development has been contested. Other time frames more relevant to agricultural enterprises, such as the 10-15 planning cycles for water resource plans and the 30 year
14 Environment, Agriculture, Resources and Energy Committee, Public Hearing on the Strategic Cropping Land Bill, Transcript of Proceedings, Pages 2,5,6 15 Environment, Agriculture, Resources and Energy Committee, Public Briefing by DERM on the Strategic Cropping Land Bill, Transcript of Proceedings, Pages 12,13,16,17
Environment, Agriculture, Resources and Energy Committee 133 Statement of Reservation Strategic Cropping Land Bill 2011 lease renewal periods under the Delbessie Agreement, have been proposed as more appropriate for this purposes in the bill16.
These more relevant timeframes are more appropriate for agricultural enterprises to measure productivity losses resulting from a development, against the opportunity cost to their investment. A development on SCL essentially alienates an agricultural enterprise from a key asset of that enterprise. Measuring this alienation against access to other key assets, such as water and tenure security, makes more sense17.
No real justification for the 50 year timeframe is provided either in the explanatory notes accompanying the bill, or the information provided by DERM to the committee. A further serious concern is that DERM has not yet established an accurate mechanism to calculate what resources (financial or otherwise) will be required to reestablish the productive capacity of SCL through a mitigation measure18.
PROJECTS TO BE APPROVED IN EXCEPTIONAL CIRCUMSTANCES
There was considerable concern expressed in relation to the process for determining if a development meets certain criteria to be approved under exceptional circumstances provisions within a Protection Area, where such a project would ordinarily not be permitted to occur. Chief amongst these concerns was that the definition of what constitutes exceptional circumstances is unacceptably vague.
A proposed development may proceed on SCL in a Protection Area if it meets two “exceptional circumstances” criteria. The Minister may approve a development if there is no alternative site for the development, or if the project will provide an overwhelming and significant community benefit19. However, the required value of the community benefit is not quantified, nor is the nature of it established by the bill.
It should be noted that the bill defines “significant community benefit” as being both an overwhelmingly significant opportunity to benefit the state and the benefit of the development outweighs the State’s interest in protecting SCL20. It is difficult to understand then, how the provisions contained in Chapter 4 can stand part of the bill, when they appear to be inconsistent with all of its stated purposes in Chapter 1.
Approving a development in a Protection Area under the exceptional circumstances clause, which will have a permanent impact on the SCL in question, is clearly inconsistent with the stated purpose of the bill to protect land highly suitable for cropping, manage the impacts of development on that land and preserve the productive capacity of that land for future generations. The contradiction is plain.
MITIGATION
16 Queensland Murray Darling Committee, Submission No. 44 to the Environment, Agriculture, Resources and Energy Committee Inquiry into the Strategic Cropping Land Bill 2011 17 Environment, Agriculture, Resources and Energy Committee, Public Hearing on the Strategic Cropping Land Bill, Transcript of Proceedings, Page 9 18 Environment, Agriculture, Resources and Energy Committee, Public Briefing by DERM on the Strategic Cropping Land Bill, Transcript of Proceedings, Pages 12,13,16,17 19 Strategic Cropping Land Bill 2011, Ch 4 Exceptional Circumstances, Page 72 20 Strategic Cropping Land Bill 2011, Ch 4 Exceptional Circumstances, Pages 75,76
134 Environment, Agriculture, Resources and Energy Committee Strategic Cropping Land Bill 2011 Statement of Reservation
There were considerable concerns expressed in relation to the scientific and technical legitimacy of proposed measures in the bill to facilitate the restoration of the productivity of SCL, after a development activity has ceased21. There were also considerable concerns expressed about the ability to accurately calculate the loss of the productive capacity of SCL, after a development activity has ceased.
In terms of the science of rehabilitating the productive capacity of SCL through the mitigation measures provided for in the bill, a number of submissions stated that there is no scientific evidence that this can occur, particularly on prime agricultural land22. The provisions providing for mitigation measures to restore the productive capacity of SCL, is a fundamental plank supporting the objectives of the bill23.
Evidence was given to the committee during the public hearing on the bill, that during the extended public consultation period on the government’s SCL policy, no peer reviewed science documenting the successful rehabilitation of prime agricultural land was presented24. This is extraordinary, given that the provisions in Chapter 5 of the bill, is at least in part dependent on the assumption that SCL can be rehabilitated.
Furthermore, if the provisions of Chapter 5 are not supported by any peer reviewed science documenting successful rehabilitation of SCL, these provisions are contrary to two stated purposes of the bill, being to manage the impacts of development on SCL and to preserve its productive capacity. If SCL can not be rehabilitated, the impacts can not be managed and its productive capacity can not be preserved.
TRANSITIONAL ARRANGEMENTS
There were considerable concerns expressed in relation to transitional arrangements provided for in the bill that relate to developments that have met certain milestones in the assessment and approval process prior 31 May 2011. There was particular attention in this regard paid to the unique arrangements pertaining to the Springsure Creek coal project, where special transitional arrangements have been put in place.
Evidence to the committee stated that Bandanna Energy’s application did not meet the 31 May deadline. The government’s policy decision to allow the application to proceed is outside the intent of the SCL transitional arrangement provisions25. The committee however, was advised that this policy decision was justified on the basis that the application had been administratively completed, save for its publication26.
A submission to the committee states that the state Strategic Cropping Land Advisory Committee (SCLAC) was briefed at a meeting on 2nd June 2011, that as the proponents (Bandanna Energy) had
21 Growcom, Submission No.36 to the Environment, Agriculture, Resources and Energy Committee Inquiry into the Strategic Cropping Land Bill 2011 22 Environment, Agriculture, Resources and Energy Committee, Public Hearing on the Strategic Cropping Land Bill, Transcript of Proceedings, Page 4 23 Strategic Cropping Land Bill 2011, Explanatory Notes, Achievement of policy objectives, Pages 2,4 24 Environment, Agriculture, Resources and Energy Committee, Public Hearing on the Strategic Cropping Land Bill, Transcript of Proceedings, Page 4 25 Environment, Agriculture, Resources and Energy Committee, Public Briefing by DERM on the Strategic Cropping Land Bill, Transcript of Proceedings, Pages 8,10 26 Environment, Agriculture, Resources and Energy Committee, Public Briefing by DERM on the Strategic Cropping Land Bill, Transcript of Proceedings, Pages 8,10
Environment, Agriculture, Resources and Energy Committee 135 Statement of Reservation Strategic Cropping Land Bill 2011
not finalised a terms of reference for its EIS prior to the government releasing its SCL policy, that the Springsure Creek coal project would now be subject to the SCL framework as set out in the bill27.
The submission also states that subsequent to and notwithstanding this advice, the government has since entered into special transitional arrangements with Bandanna Energy to allow the development to proceed outside the SCL framework28, the details of which were outlined in correspondence to Bandanna Energy dated 6 June 2011, from the Treasurer and Minister for State Development and Trade29.
The unusual nature of these arrangements has undermined public confidence in the government’s SCL policy. The Springsure Creek coal project is in a regulatory “twilight zone” – not subject to the processes that governed applications prior to 31 May, but equally, not subject to the processes that have governed applications since 31 May. This situation has implications for the integrity of Chapter 9 of the bill.
CONCLUSION
With parts of the bill seemingly in conflict with its stated purposes, with other parts of the bill seemingly failing to achieve its objectives, with some provisions of the bill included without justification, in the absence of science to support certain parts of the bill and with a regulatory nightmare undermining public confidence in the bill generally, the LNP’s contention that the bill is flawed is well and truly substantiated.
However, the current government’s failure to modernise the regulatory arrangements to properly manage the land use completion between agriculture, mining and resource and urban development and protect SCL, the LNP remains of the view that it is still desirable to ensure this bill is passed to inform decisions on development applications. We support Recommendation 2 contained in the committee’s report.
Mr Andrew Cripps MP Mr Jack Dempsey MP Mr Andrew Powell MP Member for Hinchinbrook Member for Bundaberg Member for Glass House
27 AgForce Queensland, Submission No.45 to the Environment, Agriculture, Resources and Energy Committee Inquiry into the Strategic Cropping Land Bill 2011 28 AgForce Queensland, Submission No.45 to the Environment, Agriculture, Resources and Energy Committee Inquiry into the Strategic Cropping Land Bill 2011 29 Tabled document, Mr Gavin Batcheler, Hopgood Gamin on behalf of Bandanna Energy, Letter from the Hon Andrew Fraser MP, Environment, Agriculture, Resources and Energy Committee, Public Hearing on the Strategic Cropping Land Bill,
136 Environment, Agriculture, Resources and Energy Committee